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THE LIFE OF JOHN MARSHALL 

VOLUME II 




JOHN MARSHALL AS CHIEF JUSTICE 
From the portrait by Jarvis 



THE LIFE 

OF 

JOHN MARSHALL 

BY 

ALBERT J. BEVERIDGE 
Volume II 

POLITICIAN, DIPLOMATIST 
STATESMAN 

1789 — 1801 




BOSTON AND NEW YORK 

HOUGHTON MIFFLIN COMPANY 

(S&e fitoerjsibe $nf0 Cambridge 



COPYRIGHT, I916, BY ALBERT J. BEVERIDGE 
ALL RIGHTS RESERVED 

Published October iqib 



f APR 2 4 1967 



70314G1202 



CONTENTS 

I. INFLUENCE OF THE FRENCH REVOLUTION ON 
AMERICA 

The effort of the French King to injure Great Britain by assisting 
the revolt of the colonists hastens the upheaval in France — The 
French Revolution and American Government under the Constitu- 
tion begins at the same time — The vital influence of the French con- 
vulsion on Americans — Impossible to understand American history 
without considering this fact — • All Americans, at first, favor the 
French upheaval which they think a reform movement — ■ Marshall's 
statement — American newspapers — Gouverneur Morris's descrip- 
tion of the French people — Lafayette's infatuated reports — ■ 
Marshall gets black and one-sided accounts through personal chan- 
nels — The effect upon him — The fall of the Bastille — Lafayette 
sends Washington the key of the prison — The reign of blood in 
Paris applauded in America — American conservatives begin to 
doubt the wisdom of the French Revolution — Burke writes his "Re- 
flections" — Paine answers with his "Rights of Man" — The 
younger Adams replies in the "Publicola" essays — 'He connects 
Jefferson with Paine's doctrines — ■"Publicola" is viciously assailed 
in the press — ■ Jefferson writes Paine — The insurrection of the 
blacks in St. Domingo — ■ Marshall's account — ■ Jefferson writes his 
daughter: "I wish we could distribute the white exiles among the 
Indians" — Marshall's statement of effect of the French Revolu- 
tion in America — Jefferson writes to Short: "I would rather see half 
the earth desolated" — Louis XVI guillotined — Genet arrives in 
America — ■ The people greet him frantically — His outrageous con- 
duct — ■ The Republican newspapers suppress the news of or defend 
the atrocities of the revolutionists — • The people of Philadelphia guil- 
lotine Louis XVI in effigy — Marie Antoinette is beheaded — 
American rejoicing at her execution — Absurd exaggeration by both 
radicals and conservatives in America — The French expel Lafay- 
ette — Washington sends Marshall's brother to secure his release 
from the Allies — He fails — Effect upon Marshall — Ridiculous 
conduct of the people in America — All titles are denounced : 
"Honorable," "Reverend," even "Sir" or "Mr." considered 
"aristocratic" — ■ The "democratic societies" appear — Washington 
denounces them — Their activities — Marshall's account of their de- 
cline — The influence on America of the French Revolution sum- 
marized — Marshall and Jefferson. 



vi CONTENTS 



II. A VIRGINIA NATIONALIST . . 45 

The National Government under the Constitution begins — Popu- 
lar antagonism to it is widespread — Virginia leads this general hos- 
tility — Madison has fears — Jefferson returns from France — He is 
neutral at first — Madison is humiliatingly defeated for Senator of 
the United States because of his Nationalism — The Legislature of 
Virginia passes ominous Anti-Nationalist resolutions — • The Re- 
publicans attack everything done or omitted by Washington's Ad- 
ministration — ■ Virginia leads the opposition — • Washington ap- 
points Marshall to be United States District Attorney — Marshall 
declines the office — ■ He seeks and secures election to the Legisla- 
ture — Is given his old committees in the House of Delegates — • 
Is active in the general business of the House — The amend- 
ments to the Constitution laid before the House of Delegates — > 
They are intended only to quiet opposition to the National Govern- 
ment — Hamilton presents his financial plan — ■ "The First Report 
on the Public Credit" — 'It is furiously assailed — 'Hamilton and 
Jefferson make the famous Assumption-Capitol "deal" — Jeffer- 
son's letters — The Virginia Legislature strikes Assumption — • 
Virginia writes the Magna Charta of State Rights — Marshall des- 
perately resists these Anti-Nationalist resolutions and is badly 
beaten — Jefferson finally agrees to the attitude of Virginia — He 
therefore opposes the act to charter the Bank of the United States — 
He and Hamilton give contrary opinions — The contest over "im- 
plied powers" begins — Political parties appear, divided by Na- 
tionalism and localism — Political parties not contemplated by the 
Constitution — The word "party" a term of reproach to our early 
statesmen. 

in. LEADING THE VIRGINIA FEDERALISTS . . 77 

Marshall, in Richmond, is aggressive for the unpopular measures 
of Washington's Administration — danger of such conduct in Vir- 
ginia — Jefferson takes Madison on their celebrated northern tour 
— Madison is completely changed — Jefferson fears Marshall — ■ 
Wishes to get rid of him: "Make Marshall a judge" — Jefferson's 
unwarranted suspicions — He savagely assails the Administration 
of which he is a member — He comes to blows with Hamilton — 
The Republican Party grows — The causes for its increased 
strength — Pennsylvania resists the tax on whiskey — The Whiskey 
Rebellion — Washington denounces and Jefferson defends it — 
Militia ordered to suppress it — Marshall, as brigadier-general of 
militia, prepares to take the field — War breaks out between Eng- 
land and France — ■ Washington proclaims American Neutrality — 
Outburst of popular wrath against him — Jefferson resigns from the 
Cabinet — Marshall supports Washington — At the head of the 
military forces he suppresses the riot at Smithfield and takes a 
French privateer — The Republicans in Richmond attack Mar- 



CONTENTS vii 

shall savagely — Marshall answers his assailants — They make in- 
sinuations against his character: the Fairfax purchase, the story or 
Marshall's heavy drinking — The Republicans win on their opposi- 
tion to Neutrality — Great Britain becomes more hostile than ever 

— Washington resolves to try for a treaty in order to prevent war — 
Jay negotiates the famous compact bearing his name — Terrific 
popular resentment follows : Washington abused, Hamilton stoned, 
Jay burned in effigy, many of Washington's friends desert him — 
Toast drank in Virginia "to the speedy death of General Washing- 
ton" — Jefferson assails the treaty — Hamilton writes "Camillus" 

— Marshall stands by Washington — Jefferson names him as the 
leading Federalist in Virginia. 

IV. WASHINGTON'S DEFENDER 122 

Marshall becomes the chief defender of Washington in Virginia — 
The President urges him to accept the office of Attorney-General — 
He declines — Washington depends upon Marshall's judgment in 
Virginia politics — Vicious opposition to the Jay Treaty in Virginia 

— John Thompson's brilliant speech expresses popular sentiment 

— He couples the Jay Treaty with Neutrality: "a sullen neutrality 
between freemen and despots " — The Federalists elect Marshall to 
the Legislature — Washington is anxious over its proceedings — 
Carrington makes absurdly optimistic forecast — The Republicans 
in the Legislature attack the Jay Treaty — Marshall defends it with 
great adroitness — Must the new House of Representatives be con- 
sulted about treaties? — Carrington writes Washington that Mar- 
shall's argument was a demonstration — Randolph reports to Jeffer- 
son that Marshall's speech was tricky and ineffectual — Marshall 
defeated — Amazing attack on Washington and stout defense of 
him led by Marshall — Washington's friends beaten — Legislature 
refuses to vote that Washington has "wisdom" — Jefferson de- 
nounces Marshall: "His lax, lounging manners and profound hypoc- 
risy" — Washington recalls Monroe from France and tenders the 
French mission to Marshall, who declines — ■ The Fauchet dispatch 
is intercepted and Randolph is disgraced — Washington forces him 
to resign as Secretary of State — The President considers Marshall 
for the head of his Cabinet — The opposition to the Jay Treaty 
grows in intensity — Marshall arranges a public meeting in Rich- 
mond — ■ The debate lasts all day — The reports as to the effect of his 
speeches contradictory — ■ Marshall describes situation — The Re- 
publicans make charges and Marshall makes counter-charges — 
The national Federalist leaders depend on Marshall — They com- 
mission him to sound Henry on the Presidency as the successor of 
Washington — Washington's second Administration closes — He is 
savagely abused by the Republicans — The fight in the Legislature 
over the address to him — Marshall leads the Administration forces 
and is beaten — The House of Delegates refuse to vote that Wash- 
ington is wise, brave, or even patriotic— Washington goes out of the 



viii CONTENTS 



Presidency amid storms of popular hatred — The "Aurora's" 
denunciation of him — His own description of the abuse: "in- 
decent terms that could scarcely be applied to a Nero, a defaul- 
ter, or a common pickpocket" — Jefferson is now the popular 
hero — All this makes a deep and permanent impression on 
Marshall. 



V. THE MAN AND THE LAWYER . . . . 166 
An old planter refuses to employ Marshall as his lawyer because 
of his shabby and unimpressive appearance — He changes his 
mind after hearing Marshall address the court — Marshall is con- 
scious of his superiority over other men — ■ Wirt describes Mar- 
shall's physical appearance — ■ He practices law as steadily as his 
political activities permit — He builds a fine house adjacent to 
those of his powerful brothers-in-law — • Richmond becomes a 
flourishing town — ■ Marshall is childishly negligent of his personal 
concerns: the Beaumarchais mortgage; but he is extreme in his 
solicitude for the welfare of his relatives : the letter on the love- 
affair of his sister; and he is very careful of the business entrusted 
to him by others — He is an enthusiastic Free Mason and be- 
comes Grand Master of that order in Virginia — He has peculiar 
methods at the bar: cites few authorities, always closes in argu- 
ment, and is notably honest with the court: "The law is correctly 
stated by opposing counsel" — ■ Gustavus Schmidt describes 
Marshall — ■ He is employed in the historic case of Ware vs. Hyl- 
ton — His argument in the lower court so satisfactory to his 
clients that they select him to conduct their case in the Supreme 
Court of the United States — Marshall makes a tremendous and 
lasting impression by his effort in Philadelphia — Rufus King 
pays him high tribute — After twenty-four years William Wirt 
remembers Marshall's address and describes it — Wirt advises 
his son-in-law to imitate Marshall — Francis Walker Gilmer 
writes, from personal observation, a brilliant and accurate an- 
alysis of Marshall as lawyer and orator — The Federalist leaders 
at the Capital court Marshall — He has business dealings with 
Robert Morris — 'The Marshall syndicate purchases the Fair- 
fax estate — • Marshall's brother marries Hester Morris — ■ The old 
financier makes desperate efforts to raise money for the Fairfax 
purchase — Marshall compromises with the Legislature of Vir- 
ginia — ' His brother finally negotiates a loan in Antwerp on Mor- 
ris's real estate and pays half of the contract price — Robert 
Morris becomes bankrupt and the burden of the Fairfax debt falls 
on Marshall — He is in desperate financial embarrassment — 
President Adams asks him to go to France as a member of the 
mission to that country — ■ The offer a " God-send" to Marshall, 
who accepts it in order to save the Fairfax estate. 



CONTENTS ix 



VI. ENVOY TO FRANCE 214 

Marshall starts for France — Letters to his wife — Is bored by 
the social life of Philadelphia — His opinion of Adams — The 
President's opinion of Marshall — The " Aurora's " sarcasm — The 
reason for sending the mission — Monroe's conduct in Paris — 
The Republicans a French party — The French resent the Jay 
Treaty and retaliate by depredations on American Commerce 

— Pinckney, as Monroe's successor, expelled from France — Presi- 
dent Adams's address to Congress — Marshall, Pinckney, and 
Gerry are sent to adjust differences between France and America — • 
Gerry's appointment is opposed by entire Cabinet and all Federalist 
leaders because of their distrust of him — Adams cautions Gerry 
and Jefferson flatters him — Marshall arrives at The Hague — 
Conditions in France — Marshall's letter to his wife — His long, 
careful and important letter to Washington — His letter to Lee 
from Antwerp — Marshall and Pinckney arrive at Paris — The 
city — The corruption of the Government — ■ Gerry arrives — 
The envoys meet Talleyrand — Description of the Foreign Minister 

— His opinion of America and his estimate of the envoys — Mys- 
terious intimations. 

Vn. FACING TALLEYRAND ...... 257 

Marshall urges formal representation of American grievances to 
French Government — Gerry opposes action — The intrigue be- 
gins — Hottenguer appears — The Directory must be "soothed" 
by money "placed at the disposal of M. Talleyrand" — The 
French demands: "pay debts due from France to American citi- 
zens, pay for French spoliations of American Commerce, and 
make a considerable loan and something for the pocket" (a bribe of 
two hundred and fifty thousand dollars) — Marshall indignantly 
opposes and insists on formally presenting the American case — 
Gerry will not agree — • Bellamy comes forward and proposes still 
harder terms: "you must pay money, you must pay a great deal of 
money" — ■ The envoys consult — Marshall and Gerry disagree — 
Hottenguer and Bellamy breakfast with Gerry — They again 
urge loan and bribe — Marshall writes Washington — His letter 
an able review of the state of the country — News of Bonaparte's 
diplomatic success at Campo Formio reaches Paris — Talleyrand's 
agents again descend on the envoys and demand money — "No! 
not a sixpence" — 'Marshall's bold but moderate statement — • 
Hauteval joins Hottenguer and Bellamy — Gerry calls on Talley- 
rand : is not received — Talleyrand's agents hint at war — They 
threaten the envoys with "the French party in America" — Mar- 
shall and Pinckney declare it "degrading to carry on indirect inter- 
course" — ■ Marshall again insists on written statement to Talley- 
rand — Gerry again objects — Marshall's letter to his wife — 



s CONTENTS 

His letter in cipher to Lee — Bonaparte appears in Paris — ■ His con- 
summate acting — The fete at the Luxemburg to the Conqueror 
— Effect on Marshall. 

VIH. THE AMERICAN MEMORIAL . . . .290 

Madame de Villette — Her friendship with Marshall — Her pro- 
posals to Pinckney — Beaumarchais enters the plot — Marshall 
his attorney in Virginia — Bellamy suggests an arrangement be- 
tween Marshall and Beaumarchais — Marshall rejects it — 
Gerry asks Talleyrand to dine with him — The dinner — Hot- 
tenguer in Talleyrand's presence again proposes the loan and 
bribe — Marshall once more insists on written statement of the 
American case — Gerry reluctantly consents — Marshall writes 
the American memorial — That great state paper — The French 
decrees against American commerce become harsher — Gerry 
holds secret conferences with Talleyrand — Marshall rebukes 
Gerry — Talleyrand at last receives the envoys formally — The 
fruitless discussion — ■ Altercation between Marshall and Gerry 
■ — Beaumarchais comes with alarming news — Marshall again 
writes Washington — Washington's answer — The French Foreign 
Minister answers Marshall's memorial — He proposes to treat 
with Gerry alone — Marshall writes reply to Talleyrand — Beau- 
marchais makes final appeal to Marshall — Marshall replies with 
spirit — He sails for America. 

IX. THE TRIUMPHANT RETURN . . . .335 

Anxiety in America — JetterSon is eager for news — Skipwith 
writes Jefferson from Paris — Dispatches of envoys, written by 
Marshall, are received by the President — Adams makes alarming 
speech to Congress — The strength of the Republican Party in- 
creases — Republicans in House demand that dispatches be made 
public — Adams transmits them to Congress — ■ Republicans are 
thrown into consternation and now oppose publication — ■ Feder- 
alist Senate orders publication — Effect on Republicans in Con- 
gress — Effect on the country — Outburst of patriotism: " Hail, 
Columbia! " is written — Marshall arrives, unexpectedly, at New 
York — His dramatic welcome at Philadelphia — The Federalist 
banquet: Millions "for defense but not one cent for tribute" — 
Adams wishes to appoint Marshall Associate Justice of the Supreme 
Court — ■ He declines — ■ He is enthusiastically received at Rich- 
mond — Marshall's speech — He is insulted at the theater in 
Fredericksburg — Congress takes decisive action : Navy Depart- 
ment is created and provisional army raised — Washington accepts 
command — His opinions of the French — His letter to Marshall's 
brother — Jefferson attacks X. Y. Z. dispatches and defends 
Talleyrand — Alien and Sedition Laws are enacted — • Gerry's pre- 
dicament in France — His return — Marshall disputes Gerry's 
statements — Marshall's letter to his wife — He is hard pressed for 



CONTENTS » 

money — Compensation for services as envoy saves the Fairfax 
estate — ■ Resolves to devote himself henceforth exclusively to his 
profession. 

X. CANDIDATE FOR CONGRESS 374 

Plight of the Federalists in Richmond — They implore Marshall 
to be their candidate for Congress — ■ He refuses — Washington per- 
sonally appeals to him — Marshall finally yields — Violence of the 
campaign — Republicans viciously attack Marshall — the Alien and 
Sedition Laws the central issue — "Freeholder's" questions to 
Marshall — His answers — Federalists disgusted with Marshall — ■ 
"The Letters of Curtius" — The Kentucky and Virginia Resolu- 
tions — ■ The philosophy of secession — Madison writes address of 
majority of Virginia Legislature to their constituents — Marshall 
writes address of the minority which Federalists circulate as cam- 
paign document — Republicans ridicule its length and verbosity — 
Federalists believe Republicans determined to destroy the Na- 
tional Government — Campaign charges against Marshall — Mar- 
shall's disgust with politics: "Nothing more debases or pollutes the 
human mind" — Despondent letter to his brother — On the brink of 
defeat — Patrick Henry saves Marshall — Riotous scenes on election 
day — Marshall wins by a small majority — Washington rejoices — 
Federalist politicians not sure of Marshall — Jefferson irritated at 
Marshall's election — Marshall visits his father — Jefferson thinks it 
a political journey : " the visit of apostle Marshall to Kentucky excites 
anxiety" — Naval war with France in progress — Adams sends the 
second mission to France — Anger of the Federalists — Republican 
rejoicing — Marshall supports President's policy — ■ Adams par- 
dons Fries — Federalists enraged, Republicans jubilant — State of 
parties when Marshall takes his seat in Congress. 

XI. INDEPENDENCE IN CONGRESS . . . .432 

Speaker Sedgwick's estimate of Marshall — Cabot's opinion — ■ 
Marshall a leader in Congress from the first — Prepares answer of 
House to President's speech — It satisfies nobody — Wolcott de- 
scribes Marshall — Presidential politics — Marshall writes his 
brother analysis of situation — Announces death of Washington, 
presents resolutions, and addresses House: "first in war, first in peace 
and first in the hearts of his countrymen" — Marshall's activity in 
the House — He clashes with John Randolph of Roanoke — • De- 
bate on Slavery and Marshall's vote — He votes against his party 
on Sedition Law — Opposes his party's favorite measure, the Dis- 
puted Elections Bill — Forces amendment and kills the bill — 
Federalist resentment of his action: Speaker Sedgwick's comment 
on Marshall — The celebrated case of Jonathan Robins — Repub- 
licans make it principal ground of attack on Administration — The 
Livingston Resolution — Marshall's great speech on Executive 



xii CONTENTS 

power — Gallatin admits it to be " unanswerable" — It defeats the 
Republicans — Jefferson's faint praise — the "Aurora's" amusing 
comment — Marshall defends the army and the policy of preparing 
for war — His speech the ablest on the Army Bill — His letter to 
Dabney describing conditions — Marshall helps draw the first 
Bankruptcy Law and, in the opinion of the Federalists, spoils it — 
Speaker Sedgwick vividly portrays Marshall as he appeared to the 
Federalist politicians at the close of the session. 

XII. CHIEF JUSTICE OF THE UNITED STATES 485 

The shattering of Adams's Cabinet — Marshall declines office of 
Secretary of War — Offered that of Secretary of State — Adams's 
difficult party situation — The feud with Hamilton — Marshall 
finally, and with reluctance, accepts portfolio of Secretary of State 
— Republican comment — Federalist politicians approve: "Mar- 
shall a state conservator" — Adams leaves Marshall in charge at 
Washington — Examples of his routine work — His retort to the 
British Minister — His strong letter to Great Britain on the British 
debts — • Controversy with Great Britain over contraband, treat- 
ment of neutrals, and impressment — Marshall's notable letter on 
these subjects — His harsh language to Great Britain — Federalist 
disintegration begins — Republicans overwhelmingly victorious in 
Marshall's home district — Marshall's despondent letter to Otis: 
"The tide of real Americanism is on the ebb" — Federalist 
leaders quarrel; rank and file confused and angered — Hamilton's 
faction plots against Adams — Adams's inept retaliation : Hamil- 
ton and his friends "a British faction" — Republican strength in- 
creases — Jefferson's platform — The second mission to France 
succeeds in negotiating a treaty — Chagrin of Federalists and re- 
joicing of Republicans — Marshall dissatisfied but favors ratifica- 
tion — Hamilton's amazing personal attack on Adams — The 
Federalists dumbfounded, the Republicans in glee — The terrible 
campaign of 1800 — Marshall writes the President's address to 
Congress — The Republicans carry the election by a narrow mar- 
gin — Tie between Jefferson and Burr — Federalists in House 
determine to elect Burr — Hamilton's frantic efforts against Burr: 
"The Catiline of America" — Hamilton appeals to Marshall, who 
favors Burr — Marshall refuses to aid Jefferson, but agrees to keep 
hands off — Ellsworth resigns as Chief Justice — Adams reappoints 
Jay, who declines — Adams then appoints Marshall, who, with 
hesitation, accepts — The appointment unexpected and arouses no 
interest — Marshall continues as Secretary of State — The dra- 
matic contest in the House over Burr and Jefferson — Marshall ac- 
cused of advising Federalists that Congress could provide for Presi- 
dency by law in case of deadlock — Federalists consider Marshall 
for the Presidency — Hay assails Marshall — Burr refuses Federal- 
ist proposals — ■ The Federalist bargain with Jefferson — He is 
elected — The "midnight judges" — The power over the Supreme 



CONTENTS xiii 

Court which Marshall was to exercise totally unsuspected by any- 
body — Failure of friend and foe to estimate properly his courage 
and determination. 



APPENDIX 565 

I. List of Cases 567 

II. General Marshall's Answer to an Address of 

the Citizens of Richmond, Vhiginia . . . 571 

III. Freeholder's Questions to General Marshall . 574 

WORKS CITED IN THIS VOLUME . . . .579 



ILLUSTRATIONS 



JOHN MARSHALL AS CHIEF JUSTICE Colored Frontispiece 

From the portrait by John Wesley Jarvis in the possession of Mr. 
Roland Gray, of Boston. It represents Marshall as he was during his 
early years as Chief Justice and as he appeared when Representative 
in Congress and Secretary of State. The Jarvis portrait is by far the 
best likeness of Marshall during this period of his life. 

JOHN MARSHALL'S HOUSE, RICHMOND . . .172 

From a photograph taken especially for this book. The house was 
built by Marshall between 1789 and 1793. It was his second home in 
Richmond and the one in which he lived for more than forty years. 

THE LARGE ROOM WHERE THE FAMOUS "LAW- 
YERS' DINNERS" WERE GIVEN . . . .172 

From a photograph taken especially for this book. The woodwork of 
the room, which is somewhat indistinct in the reproduction, is exceed- 
ingly well done. 

FACSIMILE OF A PAGE OF JAMES MARSHALL'S 
ACCOUNT WITH ROBERT MORRIS, HIS FATHER- 
IN-LAW 210 

From the original in the possession of James M. Marshall, of Front 
Royal, Virginia. This page shows £7700 sterling furnished by Robert 
Morris to the Marshall brothers for the purchase of the Fairfax estate. 
This documentary evidence of the source of the money with which the 
Marshalls purchased this holding has not hitherto been known to exist. 

FACSIMILE OF THE FIRST PAGE OF A LETTER 
FROM JOHN MARSHALL TO HIS WIFE, JULY 2, 1797 214 

From the original in the possession of Miss Emily Harvie, of Rich- 
mond. The letter was written from Philadelphia immediately after 
Marshall's arrival at the capital when starting on his journey to France 
on the X. Y. Z. Mission. It is characteristic of Marshall in the fervid 
expressions of tender affection for his wife, whom he calls his " dearest 
life." It is also historically important as describing his first impression 
of President Adams. 



xvi ILLUSTRATIONS 

FACSIMILE OF PART OF LETTER OF JULY 17, 1797 
FROM JOHN ADAMS TO ELBRIDGE GERRY DE- 
SCRIBING JOHN MARSHALL 228 

From the original in the Adams Manuscripts. President Adams 
writes of Marshall as he appeared to him just before he sailed for 
France. 

CHARLES MAURICE DE TALLEYRAND-PERIGORD . 252 

From an engraving by Bocourt after a drawing by Mullard, repro- 
duced through the kindness of Mr. Charles E. Goodspeed. This portrait 
represents Talleyrand as he was some time after the X. Y. Z. Mission. 

GENERAL CHARLES COTESWORTH PINCKNEY . 274 

From an engraving by E. Wellmore after the miniature by Edward 
Greene Malbone. 

ELBRIDGE GERRY 310 

From an engraving by J. B. Longacre after a drawing made from 
life by Vanderlyn in 1798, when Gerry was in Paris. 

FACSIMILE OF PART OF A LETTER FROM JOHN 
MARSHALL TO HIS BROTHER, DATED APRIL 3, 
1799, REFERRING TO THE VIRULENCE OF THE 
CAMPAIGN IN WHICH MARSHALL WAS A CANDI- 
DATE FOR CONGRESS . 410 

The word "faction" in this excerpt meant "party" in the vernacu- 
lar of the period. 



LIST OF ABBREVIATED TITLES MOST 
FREQUENTLY CITED 

All references here are to the List of Authorities at the end of this volume. 

Am. St. Prs. See American State Papers. 

Beard: Econ. I. C. See Beard, Charles A. Economic Interpretation 

of the Constitution of the United States. 
Beard: Econ. 0. J. D. See Beard, Charles A. Economic Origins of 

Jeffersonian Democracy. 
Cor. Rev.: Sparks. See Sparks, Jared. Correspondence of the Revo- 
lution. 
Cunningham Letters. See Adams, John. Correspondence with Wil- 
liam Cunningham. 
Letters: Ford. See Vans Murray, William. Letters to John Quincy 

Adams. Edited by Worthington Chauncey Ford. 
Monroe's Writings: Hamilton. See Monroe, James. Writings. Edited 

by Stanislaus Murray Hamilton. 
Old Family Letters. See Adams, John. Old Family Letters. Edited 

by Alexander Biddle. 
Works: Adams. See Adams, John. Works. Edited by Charles Francis 

Adams. 
Works: Ames. See Ames, Fisher. Works. Edited by Seth Ames. 
Works: Ford. See Jefferson, Thomas. Works. Federal Edition. Edited 

by Paul Leicester Ford. 
Works: Hamilton. See Hamilton, Alexander. Works. Edited by John 

C. Hamilton. 
Works: Lodge. See Hamilton, Alexander. Works. Federal Edition. 

Edited by Henry Cabot Lodge. 
Writings: Conway. See Paine, Thomas. Writings. Edited by Mon- 

cure Daniel Conway. 
Writings: Ford. See Washington, George. Writings. Edited by 

Worthington Chauncey Ford. 
Writings: Hunt. See Madison, James. Writings. Edited by Gaillard 

Hunt. 
Writings, J. Q. A.: Ford. See Adams, John Quincy. Writings. Edited 

by Worthington Chauncey Ford. 



xviii LIST OF ABBREVIATED TITLES 

Writings: Smyth. See Franklin, Benjamin. Writings. Edited by 

Albert Henry Smyth. 
Writings: Sparks. See Washington, George. Writings. Edited by 

Jared Sparks. 



THE LIFE OF JOHN MARSHALL 



THE LIFE OF JOHN MARSHALL 
CHAPTER I 

INFLUENCE OF THE FRENCH REVOLUTION ON 
AMERICA 

Were there but an Adam and an Eve left in every country, and left free, 
it would be better than it now is. (Jefferson.) 

That malignant philosophy which can coolly and deliberately pursue, 
through oceans of blood, abstract systems for the attainment of some fancied 
untried good. (Marshall.) 

The only genuine liberty consists in a mean equally distant from the des- 
potism of an individual and a million. (" Publicola": J. Q. Adams, 1792.) 

The decision of the French King, Louis XVI, on 
the advice of his Ministers, to weaken Great Britain 
by aiding the Americans in their War for Independ- 
ence, while it accomplished its purpose, was fatal to 
himself and to the Monarchy of France. As a result, 
Great Britain lost America, but Louis lost his head. 
Had not the Bourbon Government sent troops, 
fleets, munitions, and money to the support of the 
failing and desperate American fortunes, it is prob- 
able that Washington would not have prevailed; 
and the fires of the French holocaust which flamed 
throughout the world surely would not have been 
lit so soon. 

The success of the American patriots in their 
armed resistance to the rule of George III, although 
brought about by the aid of the French Crown, was, 
nevertheless, the shining and dramatic example 
which Frenchmen imitated in beginning that vast 
and elemental upheaval called the French Revolu- 



2 JOHN MARSHALL 

tion. 1 Thus the unnatural alliance in 1778 between 
French Autocracy and American Liberty was one of 
the great and decisive events of human history. 

In the same year, 1789, that the American Re- 
public began its career under the forms of a National 
Government, the curtain rose in France on that 
tremendous drama which will forever engage the 
interest of mankind. And just as the American 
Revolution vitally influenced French opinion, so the 
French Revolution profoundly affected American 
thought; and, definitely, helped to shape those con- 
tending forces in American life that are still waging 
their conflict. 

While the economic issue, so sharp in the adop- 
tion of the Constitution, became still keener, as will 
appear, after the National Government was estab- 
lished, it was given a higher temper in the forge of 
the French Revolution. American history, especially 

1 "That the principles of America opened the Bastille is not to be 
doubted." (Thomas Paine to Washington, May 1, 1790; Cor. Rev. 2 : 
Sparks, iv, 328.) "The principles of it [the French Revolution] were 
copied from America." (Paine to Citizens of the United States, Nov. 
15, 1802; Writings: Conway, iii, 381.) 

"Did not the American Revolution produce the French Revolu- 
tion? And did not the French Revolution produce all the Calamities 
and Desolations to the human Race and the whole Globe ever since?" 
(Adams to Rush, Aug. 28, 1811; Old Family Letters, 352.) 

"Many of . . . the leaders [of the French Revolution] have imbibed 
their principles in America, and all have been fired by our example." 
(Gouverneur Morris to Washington, Paris, April 29, 1789; Cor. Rev.: 
Sparks, iv, 256.) 

"All the friends of freedom on this side the Atlantic are now re- 
joicing for an event which . . . has been accelerated by the American 
Revolution. . . . You have been the means of raising that spirit in 
Europe which . . . will . . . extinguish every remain of that barbarous 
servitude under which all the European nations, in a less . . . degree, 
have so long been subject." (Catharine M. Graham to Washington, 
Berks (England), Oct. 1789; ib., 284; and see Cobbett, i, 97.) 



THE FRENCH REVOLUTION 3 

of the period now under consideration, can be read 
correctly only by the lights that shine from that 
titanic smithy; can be understood only by consider- 
ing the effect upon the people, the thinkers, and the 
statesmen of America, of the deeds done and words 
spoken in France during those inspiring if mon- 
strous years. 

The naturally conservative or radical tempera- 
ments of men in America were hardened by every 
episode of the French convulsion. The events in 
France, at this time, operated upon men like Hamil- 
ton on the one hand, and Jefferson on the other 
hand, in a fashion as deep and lasting as it was 
antagonistic and antipodal; and the intellectual and 
moral phenomena, manifested in picturesque guise 
among the people in America, impressed those who 
already were, and those who were to become, the 
leaders of American opinion, as much as the events 
of the Gallic cataclysm itself. 

George Washington at the summit of his fame, 
and John Marshall just beginning his ascent, were 
alike confirmed in that non-popular tendency of 
thought and feeling which both avowed in the dark 
years between our War for Independence and the 
adoption of our Constitution. 1 In reviewing all 
the situations, not otherwise to be fully understood, 
that arose from the time Washington became Presi- 
dent until Marshall took his seat as Chief Justice, we 
must have always before our eyes the extraordinary 
scenes and consider the delirious emotions which 
the French Revolution produced in America. It 

1 See vol. i, chap, viii, of this work. 



4 JOHN MARSHALL 

must be constantly borne in mind that Americans of 
the period now under discussion did not and could 
not look upon it with present-day knowledge, per- 
spective, or calmness. What is here set down is, 
therefore, an attempt to portray the effects of that 
volcanic eruption of human forces upon the minds 
and hearts of those who witnessed, from across the 
ocean, its flames mounting to the heavens and its 
lava pouring over the whole earth. 

Unless this portrayal is given, a blank must be left 
in a recital of the development of American radical 
and conservative sentiment and of the formation of 
the first of American political parties. Certainly for 
the purposes of the present work, an outline, at least, 
of the effect of the French Revolution on American 
thought and feeling is indispensable. Just as the 
careers of Marshall and Jefferson are inseparably 
intertwined, and as neither can be fully understood 
without considering the other, so the American by- 
products of the French Revolution must be examined 
if we would comprehend either of these great protag- 
onists of hostile theories of democratic government. 

At first everybody in America heartily approved 
the French reform movement. Marshall describes 
for us this unanimous approbation. "A great revolu- 
tion had commenced in that country," he writes, 
"the first stage of which was completed by limiting 
the powers of the monarch, and by the establish- 
ment of a popular assembly. In no part of the 
globe was this revolution hailed with more joy 
than in America. The influence it would have on 
the affairs of the world was not then distinctly 



THE FRENCH REVOLUTION 5 

foreseen; and the philanthropist, without becoming 
a political partisan, rejoiced in the event. On this 
subject, therefore, but one sentiment existed." 1 

Jefferson had written from Paris, a short time 
before leaving for America: "A complete revolu- 
tion in this [French] government, has been effected 
merely by the force of public opinion ; . . . and this 
revolution has not cost a single life." 2 So little 
did his glowing mind then understand the forces 
which he had helped set in motion. A little later 
he advises Madison of the danger threatening the re- 
formed French Government, but adds, reassuringly, 
that though "the lees ... of the patriotic party 
[the French radical party] of wicked principles & 
desperate fortunes" led by Mirabeau who "is the 
chief . . . may produce a temporary confusion . . . 
they cannot have success ultimately. The King, 
the mass of the substantial people of the whole 
country, the army, and the influential part of the 
clergy, form a firm phalanx which must prevail." 3 

So, in the beginning, all American newspapers, 
now more numerous, were exultant. "Liberty will 
have another feather in her cap. . . . The ensuing 
winter [1789] will be the commencement of a Golden 
Age," 4 was the glowing prophecy of an enthusiastic 
Boston journal. Those two sentences of the New 

1 Marshall, ii, 155. "The mad harangues of the [French] National 
Convention were all translated and circulated through the States. 
The enthusiasm they excited it is impossible for me to describe." 
(Cobbett in "Summary View"; Cobbett, i, 98.) 

2 Jefferson to Humphreys, March 18, 1789; Works : Ford, v, 467. 

3 Jefferson to Madison, Aug. 28, 1789; ib., 490. 

4 Boston Gazette, Sept. 7 and Nov. 30, 1789; as quoted in Hazen; 
and see Hazen, 142-43. 



6 JOHN MARSHALL 

England editor accurately stated the expectation 
and belief of all America. 

But in France itself one American had grave mis- 
givings as to the outcome. "The materials for a rev- 
olution in this country are very indifferent. Every- 
body agrees that there is an utter prostration of 
morals; but this general position can never convey 
to an American mind the degree of depravity. ... A 
hundred thousand examples are required to show the 
extreme rottenness. . . . The virtuous . . . stand for- 
ward from a background deeply and darkly shaded. 
. . . From such crumbling matter . . . the great edi- 
fice of freedom is to be erected here [in France]. . . . 
[There is] a perfect indifference to the violation of 
engagements. . . . Inconstancy is mingled in the 
blood, marrow, and very essence of this people. . . . 
Consistency is a phenomenon. . . . The great mass 
of the common people have ... no morals but their 
interest. These are the creatures who, led by drunken 
curates, are now in the high road a la liberie" l 
Such was the report sent to Washington by Gou- 
verneur Morris, the first American Minister to 
France under the Constitution. 

Three months later Morris, writing officially, de- 
clares that "this country is ... as near to anarchy 
as society can approach without dissolution." 2 And 
yet, a year earlier, Lafayette had lamented the 

1 Gouverneur Morris to Washington, Paris, April 29, 1789; Cor. 
Rev. : Sparks, iv, 256. Even Jefferson had doubted French capacity 
for self-government because of what he described as French light- 
mindedness. (Jefferson to Mrs. Adams, Feb. 22, 1787; Works: Ford, 
v, 263; also see vol. i, chap, viii, of this work.) 

2 Morris to Washington, July 31, 1789; Cor. Rev.-. Sparks, iv, 
270. 



THE FRENCH REVOLUTION 7 

French public's indifference to much needed reforms; 
"The people . . . have been so dull that it has 
made me sick" was Lafayette's doleful account of 
popular enthusiasm for liberty in the France of 
1788. 1 

Gouverneur Morris wrote Robert Morris that a 
French owner of a quarry demanded damages be- 
cause so many bodies had been dumped into the 
quarry that they "choked it up so that he could not 
get men to work at it." These victims, declared the 
American Minister, had been "the best people," 
killed " without form of trial, and their bodies thrown 
like dead dogs into the first hole that offered." 2 Gou- 
verneur Morris's diary abounds in such entries as 
"[Sept. 2, 1792] the murder of the priests, . . . mur- 
der of prisoners, . . . [Sept. 3] The murdering con- 
tinues all day. . . . [Sept. 4th] . . . And still the 
murders continue." 3 

John Marshall was now the attorney of Robert 

1 Lafayette to Washington, May 25, 1788; Cor. Rev.: Sparks, iv, 
216. Lafayette's letters to Washington, from the beginning of the 
French Revolution down to his humiliating expulsion from France, 
constitute a thermometer of French temperature, all the more trust- 
worthy because his letters are so naive. For example, in March, 
1790: "Our revolution is getting on as well as it can, with a nation that 
has swallowed liberty at once, and is still liable to mistake licentious- 
ness for freedom." Or, in August of the same year: "I have lately lost 
some of my favor with the mob, and displeased the frantic lovers of 
licentiousness, as I am bent on establishing a legal subordination." 
Or, six months later: "I still am tossed about in the ocean of factions 
and commotions of every kind." Or, two months afterwards: "There 
appears a kind of phenomenon in my situation; all parties against 
me, and a national popularity which, in spite of every effort, has 
been unshakable." (Lafayette to Washington, March 17, 1790; ib., 
321; Aug. 28, ib., 345; March 7, 1791, ib., 361; May 3, 1791, ib., 372.) 

2 G. Morris to R. Morris, Dec. 24, 1792; Morris, ii, 15. 
" lb., i, 582-84. 



8 JOHN MARSHALL 

Morris ; was closely connected with him in business 
transactions; and, as will appear, was soon to be- 
come his relative by the marriage of Marshall's 
brother to the daughter of the Philadelphia finan- 
cier. Gouverneur Morris, while not related to 
Robert Morris, was "entirely devoted" to and 
closely associated with him in business; and both 
were in perfect agreement of opinions. 1 Thus the 
reports of the scarlet and revolting phases of the 
French Revolution that came to the Virginia lawyer 
were carried through channels peculiarly personal 
and intimate. 

They came, too, from an observer who was thor- 
oughly aristocratic in temperament and conviction. 2 
Little of appreciation or understanding of the basic 
causes and high purposes of the French Revolution 
appears in Gouverneur Morris's accounts and com- 
ments, while he portrays the horrible in unrelieved 
ghastliness. 3 

Such, then, were the direct and first-hand ac- 
counts that Marshall received; and the impression 
made upon him was correspondingly dark, and as 
lasting as it was somber. Of this, Marshall him- 
self leaves us in no doubt. Writing more than a 
decade later he gives his estimate of Gouverneur 
Morris and of his accounts of the French Revo- 
lution. 

1 Louis Otto to De Montniorin, March 10, 1792; Writings; Conway, 
iii, 153. 

2 lb., 154-56. 

3 Morris associated with the nobility in France and accepted the 
aristocratic view. (lb.; and see A. Esmein, Membre de Flnstitut: 
Gouverneur Morris, un timoin amiricain de la revolution frangaise. 
Paris, 1906.) 



THE FRENCH REVOLUTION 9 

"The private correspondence of Mr. Morris with 
the president [and, of course, much more so with 
Robert Morris] exhibits a faithful picture, drawn 
by the hand of a master, of the shifting revolution- 
ary scenes which with unparalleled rapidity suc- 
ceeded each other in Paris. With the eye of an 
intelligent, and of an unimpassioned observer, he 
marked all passing events, and communicated them 
with fidelity. He did not mistake despotism for 
freedom, because it was sanguinary, because it was 
exercised by those who denominated themselves the 
people, or because it assumed the name of liberty. 
Sincerely wishing happiness and a really free gov- 
ernment to France, he could not be blind to the ob- 
vious truth that the road to those blessings had 
been mistaken." l 

Everybody in America echoed the shouts of the 
Parisian populace when the Bastille fell. Was it not 
the prison where kings thrust their subjects to 
perish of starvation and torture? 2 Lafayette, "as 
a missionary of liberty to its patriarch," hastened 
to present Washington with "the main key of the 

1 Marshall, ii, note xvi, p. 17. 

2 Recent investigation establishes the fact that the inmates of 
the Bastille generally found themselves very well off indeed. The 
records of this celebrated prison show that even prisoners of mean 
station, when incarcerated for so grave a crime as conspiracy against 
the King's life, had, in addition to remarkably abundant meals, an 
astonishing amount of extra viands and refreshments including com- 
fortable quantities of wine, brandy, and beer. Prisoners of higher 
station fared still more generously, of course. (Funck-Brentano: 
Legends of the Bastille, 85-113; see also ib., introduction.) It should be 
said, however, that the lettres de cachet were a chief cause of complaint, 
although the stories, generally exaggerated, concerning the cruel 
treatment of prisoners came to be the principal count of the public 
indictment of the Bastille. 



10 JOHN MARSHALL 

fortress of despotism." * Washington responded that 
he accepted the key of the Bastille as "a token of the 
victory gained by liberty." 2 Thomas Paine wrote 
of his delight at having been chosen by Lafayette 
to "convey . . . the first ripe fruits of American 
principles, transplanted into Europe, to his master 
and patron." 3 Mutual congratulations were carried 
back and forth by every ship. 

Soon the mob in Paris took more sanguinary action 
and blood flowed more freely, but not in sufficient 
quantity to quench American enthusiasm for the 
cause of liberty in France. We had had plenty of 
mobs ourselves and much crimson experience. Had 
not mobs been the precursors of our own Revolution? 

The next developments of the French uprising 
and the appearance of the Jacobin Clubs, how- 
ever, alarmed some and gave pause to all of the 
cautious friends of freedom in America and other 
countries. 

Edmund Burke hysterically sounded the alarm. 
On account of his championship of the cause of 
American Independence, Burke had enjoyed much 
credit with all Americans who had heard of him. 
"In the last age," exclaimed Burke in Parliament, 
February 9, 1790, "we were in danger of being en- 
tangled by the example of France in the net of a 
relentless despotism. . . . Our present danger from 

1 Lafayette to Washington, March 17, 1790; Cor. Rev.: Sparks, 
iv, 322. 

2 Washington to Lafayette, August 11, 1790; Writings: Ford, xi, 
493. 

3 Paine to Washington, May 1, 1790; Cor. Rev.: Sparks, iv, 328. 
Paine did not, personally, bring the key, but forwarded it from 
London. 



THE FRENCH REVOLUTION 11 

the example of a people whose character knows no 
medium, is, with regard to government, a danger 
from anarchy; a danger of being led, through an 
admiration of successful fraud and violence, to an 
imitation of the excesses of an irrational, unprin- 
cipled, proscribing, confiscating, plundering, fero- 
cious, bloody, and tyrannical democracy." * 

Of the French declaration of human rights Burke 
declared: "They made and recorded a sort of in- 
stitute and digest of anarchy, called the rights of 
man, in such a pedantic abuse of elementary prin- 
ciples as would have disgraced boys at school. . . . 
They systematically destroyed every hold of au- 
thority by opinion, religious or civil, on the minds 
of the people. 2 . . . On the scheme of this barba- 
rous philosophy, which is the offspring of cold hearts 
and muddy understandings," exclaimed the great 
English liberal, "laws are to be supported only by 
their own terrours. ... In the groves of their acad- 
emy, at the end of every vista, you see nothing but 
the gallows." 3 

Burke's extravagant rhetoric, although reprinted 
in America, was little heeded. It would have been 
better if his pen had remained idle. For Burke's 
wild language, not yet justified by the orgy of blood 

1 Burke in the House of Commons; Works: Burke, i, 451-53. 

2 lb. 

3 Reflections on the Revolution in France; ib., i, 489. Jefferson well 
stated the American radical opinion of Burke: "The Revolution of 
France does not astonish me so much as the Revolution of Mr. 
Burke. . . . How mortifying that this evidence of the rottenness of his 
mind must oblige us now to ascribe to wicked motives those actions 
of his life which were the mark of virtue & patriotism." (Jefferson 
to Vaughan, May 11, 1791; Works : Ford, vi, 260.) 



n JOHN MARSHALL 

in which French liberty was, later, to be baptized, 
caused a voice to speak to which America did listen, 
a page to be written that America did read. Thomas 
Paine, whose "Common Sense" had made his name 
better known to all people in the United States than 
that of any other man of his time except Washing- 
ton, Franklin, Jefferson, and Henry, was then in 
France. This stormy petrel of revolution seems al- 
ways to have been drawn by instinct to every part of 
the human ocean where hurricanes were brooding. 1 

Paine answered Burke with that ferocious indict- 
ment of monarchy entitled "The Rights of Man," 
in which he went as far to one extreme as the Eng- 
lish political philosopher had gone to the other; for 
while Paine annihilated Burke's Brahminic lauda- 
tion of rank, title, and custom, he also penned a 
doctrine of paralysis to all government. As was the 
case with his "Common Sense," Paine's "Rights 
of Man" abounded in attractive epigrams and strik- 
ing sentences which quickly caught the popular ear 
and were easily retained by the shallowest memory. 

" The cause of the French people is that of . . . the 
whole world," declared Paine in the preface of his 
flaming essay; 2 and then, the sparks beginning to 
fly from his pen, he wrote: " Great part of that order 
which reigns among mankind is not the effect of 
government. ... It existed prior to government, 
and would exist if the formality of government was 

1 Paine had not yet lost his immense popularity in the United 
States. While, later, he came to be looked upon with horror by great 
numbers of people, he enjoyed the regard and admiration of nearly 
everybody in America at the time his Rights of Man appeared. 

2 Writings : Conway, ii, 272. 



THE FRENCH REVOLUTION 13 

abolished. . . . The instant formal government is 
abolished," said he, "society begins to act; . . . and 
common interest produces common security." And 
again: "The more perfect civilization is, the less 
occasion has it for government. ... It is but few 
general laws that civilised life requires." 

Holding up our own struggle for liberty as an 
illustration, Paine declared: "The American Revolu- 
tion . . . laid open the imposition of governments"; 
and, using our newly formed and untried National 
Government as an example, he asserted with gro- 
tesque inaccuracy: "In America ... all the parts 
are brought into cordial unison. There the poor are 
not oppressed, the rich are not privileged. . . . Their 
taxes are few, because their government is just." 1 

Proceeding thence to his assault upon all other 
established governments, especially that of England, 
the great iconoclast exclaimed: "It is impossible 
that such governments as have hitherto [1790] ex- 
isted in the world, could have commenced by any 
other means than a violation of every principle 
sacred and moral." 

Striking at the foundations of all permanent au- 
thority, Paine declared that "Every age and gener- 
ation must be . . . free to act for itself in all cases. 
. . . The vanity and presumption of governing be- 
yond the grave is the most ridiculous and insolent 
of all tyrannies." The people of yesterday have 
"no right ... to bind or to control . . . the people 
of the present day . . . in any shape whatever. . . . 

1 Writings: Conway, ii, 406. At this very moment the sympathizers 
with the French Revolution in America were saying exactly the reverse. 



14 JOHN MARSHALL 

Every generation is, and must be, competent to all 
the purposes which its occasions require." * So wrote 
the incomparable pamphleteer of radicalism. 

Paine's essay, issued in two parts, was a torch 
successively applied to the inflammable emotions of 
the American masses. Most newspapers printed in 
each issue short and appealing excerpts from it. For 
example, the following sentence from Paine's "Rights 
of Man" was reproduced in the "Columbian Cen- 
tinel" of Boston on June 6, 1792: "Can we possibly 
suppose that if government had originated in right 
principles and had not an interest in pursuing a wrong 
one, that the world could have been in the wretched 
and quarrelsome condition it is?" Such quotations 
from Paine appeared in all radical and in some 
conservative American publications; and they were 
repeated from mouth to mouth until even the back- 
woodsmen knew of them — and believed them. 

"Our people . . . love what you write and read it 
with delight" ran the message which Jefferson sent 
across the ocean to Paine. "The printers," con- 
tinued Jefferson, "season every newspaper with 
extracts from your last, as they did before from 
your first part of the Rights of Man. They have both 
served here to separate the wheat from the chaff. . . . 
Would you believe it possible that in this country 
there should be high & important characters 2 who 
need your lessons in republicanism & who do not 
heed them. It is but too true that we have a sect 
preaching up & pouting after an English constitu- 

1 Writings : Conway, ii, 278-79, 407, 408, 413, 910. 

2 Compare with Jefferson's celebrated letter to Mazzei (infra, 
chap. vii). Jefferson was now, however, in Washington's Cabinet. 



THE FRENCH REVOLUTION 15 

tion of king, lords, & commons, & whose heads are 
itching for crowns, coronets & mitres. . . . 

"Go on then," Jefferson urged Paine, "in doing 
with your pen what in other times was done with 
the sword, . . . and be assured that it has not a 
more sincere votary nor you a more ardent well- 
wisher than . . . Tho? Jefferson." ' 

And the wheat was being separated from the 
chaff, as Jefferson declared. Shocked not more by 
the increasing violence in France than by the prin- 
ciples which Paine announced, men of moderate 
mind and conservative temperament in America 
came to have misgivings about the French Revolu- 
tion, and began to speak out against its doings and 
its doctrines. 

A series of closely reasoned and well-written arti- 
cles were printed in the "Columbian Centinel" of 
Boston in the summer of 1791, over the nom de 
guerre "Publicola"; and these were widely copied. 
They were ascribed to the pen of John Adams, but 
were the work of his brilliant son. 2 

1 Jefferson to Paine, June 19, 1792; Works: Ford, vii, 121-22; 
and see Hazen, 157-60. Jefferson had, two years before, expressed 
precisely the views set forth in Paine's Rights of Man. Indeed, he 
stated them in even more startling terms. (See Jefferson to Madison, 
Sept. 6, 1789; ib., vi, 1-11.) 

2 Writings, J. Q. A.: Ford, i, 65-110. John Quincy Adams wrote 
these admirable essays when he was twenty-four years old. Their 
logic, wit, and style suggest the writer's incomparable mother. 
Madison, who remarked their quality, wrote to Jefferson: "There is 
more of method ... in the arguments, and much less of clumsiness 
& heaviness in the style, than characterizes his [John Adams's] writ- 
ings." (Madison to Jefferson, July 13, 1791; Writings: Hunt, vi, 56.) 

The sagacious industry of Mr. Worthington C. Ford has made 
these and all the other invaluable papers of the younger Adams ac- 
cessible, in his Writings of John Quincy Adams now issuing. 



16 JOHN MARSHALL 

The American edition of Paine's "Rights of Man" 
was headed by a letter from Secretary of State Jef- 
ferson to the printer, stating his pleasure that the 
essay was to be printed in this country and "that 
something is at length to be publickly said against 
the political heresies which have sprung up among 
us." x Publicola called attention to this and thus, 
more conspicuously, displayed Jefferson as an advo- 
cate of Paine's doctrines. 2 

All Americans had "seen with pleasure the tem- 
ples of despotism levelled with the ground," wrote 
the keen young Boston law student. 3 There was 
"but one sentiment ... — that of exultation." But 
what did Jefferson mean by "heresies"? asked Pub- 
licola. Was Paine's pamphlet "the canonical book 
of scripture? " If so, what were its doctrines? " That 

1 Jefferson to Adams, July 17, 1791; Works: Ford, vi, 283, and foot- 
note; also see Jefferson to Washington, May 8, 1791; ib., 255-56. 

Jefferson wrote Washington and the elder Adams, trying to evade his 
patronage of Paine's pamphlet; but, as Mr. Ford moderately remarks, 
"the explanation was somewhat lame." (Writings, J. Q. A.: Ford, i, 
65; and see Hazen, 156-57.) Later Jefferson avowed that "Mr. 
Paine's principles . . . were the principles of the citizens of the U. S." 
(Jefferson to Adams, Aug. 30, 1791; Works: Ford, vi, 314.) To his 
intimate friend, Monroe, Jefferson wrote that "Publicola, in attack- 
ing all Paine's principles, is very desirous of involving me in the same 
censure with the author. I certainly merit the same, for I profess the 
same principles." (Jefferson to Monroe, July 10, 1791; ib., 280.) 

Jefferson at this time was just on the threshold of his discovery 
of and campaign against the "deep-laid plans" of Hamilton and the 
Nationalists to transform the newborn Republic into a monarchy and 
to deliver the hard-won "liberties" of the people into the rapacious 
hands of "monocrats," "stockjobbers," and other "plunderers" of 
the public. (See next chapter.) 

2 Writings, J. Q. A.: Ford, i, 65-66. 

3 Although John Quincy Adams had just been admitted to the 
bar, he was still a student in the law office of Theophilus Parsons at 
the time he wrote the Publicola papers. 



THE FRENCH REVOLUTION 17 

which a whole nation chooses to do, it has a right 
to do" was one of them. 

Was that "principle" sound? No! avowed Pub- 
licola, for "the eternal and immutable laws of justice 
and of morality are paramount to all human legisla- 
tion." A nation might have the power but never 
the right to violate these. Even majorities have no 
right to do as they please; if so, what security has 
the individual citizen? Under the unrestrained rule 
of the majority "the principles of liberty must still 
be the sport of arbitrary power, and the hideous 
form of despotism must lay aside the diadem and the 
scepter, only to assume the party-colored garments 
of democracy." 

"The only genuine liberty consists in a mean 
equally distant from the despotism of an individual 
and of a million," asserted Publicola. "Mr. Paine 
seems to think it as easy for a nation to change its 
government as for a man to change his coat." But 
"the extreme difficulty which impeded the progress 
of its [the American Constitution's] adoption . . . 
exhibits the fullest evidence of what a more than 
Herculean task it is to unite the opinions of a free 
people on any system of government whatever." 

The "mob" which Paine exalted as the common 
people, but which Publicola thought was really only 
the rabble of the cities, "can be brought to act in 
concert" only by "a frantic enthusiasm and ungov- 
ernable fury; their profound ignorance and deplor- 
able credulity make them proper tools for any man 
who can inflame their passions; . . . and," warned 
Publicola, "as they have nothing to lose by the total 



18 JOHN MARSHALL 

dissolution of civil society, their rage may be easily 
directed against any victim which may be pointed 
out to them. . . . To set in motion this inert mass, 
the eccentric vivacity of a madman is infinitely bet- 
ter calculated than the sober coolness of phlegmatic 
reason." 

"Where," asked Publicola, "is the power that 
should control them [Congress]?" if they violate the 
letter of the Constitution. Replying to his own 
question, he asserted that the real check on Con- 
gress "is the spirit of the people." 1 John Marshall 
had said the same thing in the Virginia Constitu- 
tional Convention; but even at that early period 
the Richmond attorney went further and flatly 
declared that the temporary "spirit of the people" 
was not infallible and that the Supreme Court could 
and would declare void an unconstitutional act of 
Congress — a truth which he was, unguessed at 
that time by himself or anybody else, to announce 
with conclusive power within a few years and at 
an hour when dissolution confronted the forming 
Nation. 

Such is a rapid precis of the conservative essays 
written by the younger Adams. Taken together, 
they were a rallying cry to those who dared to 
brave the rising hurricane of American sympathy 
with the French Revolution; but they also strength- 
ened the force of that growing storm. Multitudes 
of writers attacked Publicola as the advocate of 
"aristocracy" and "monarchy." "The papers un- 
der the signature of Publicola have called forth 

1 Writings, J. Q. A.: Ford, i, 65-110. 



THE FRENCH REVOLUTION 19 

a torrent of abuse," declared the final essay of the 
series. 

Brown's "Federal Gazette" of Philadelphia 
branded Publicola's doctrines as "abominable here- 
sies"; and hoped that they would "not procure 
many proselytes either to monarchy or aristocracy." l 
The "Independent Chronicle" of Boston asserted 
that Publicola was trying to build up a "system 
of Monarchy and Aristocracy ... on the ruins 
both of the Reputation and Liberties of the 
People." 2 Madison reported to Jefferson that be- 
cause of John Adams's reputed authorship of these 
unpopular letters, the supporters of the Massa- 
chusetts statesman had become "perfectly insig- 
nificant in . . . number" and that "in Boston he 
is . . . distinguished for his unpopularity." 3 

In such fashion the controversy began in America 
over the French Revolution. 

But whatever the misgivings of the conservative, 
whatever the alarm of the timid, the overwhelming 
majority of Americans were for the French Revo- 
lution and its doctrines; 4 and men of the highest 
ability and station gave dignity to the voice of the 
people. 

1 Writings, J. Q. A.: Ford, i, footnote to 107. 

"As soon as Publicola attacked Paine, swarms appeared in his de- 
fense. . . . Instantly a host of writers attacked Publicola in support of 
those [Paine's] principles." (Jefferson to Adams, Aug. 30, 1791 ; Works: 
Ford, vi, 314; and see Jefferson to Madison, July 10, 1791; ib., 279.) 

2 Writings, J. Q. A.: Ford, i, 110. 

3 Madison to Jefferson, July 13, 1791; Writings; Hunt, vi, 56; 
and see Monroe to Jefferson, July 25, 1791; Monroe's Writings: 
Hamilton, i, 225-26. 

4 A verse of a song by French Revolutionary enthusiasts at a Boston 
** Civic Festival in commemoration of the Successes of their French 



20 JOHN MARSHALL 

In most parts of the country politicians who 
sought election to public office conformed, as usual, 
to the popular view. It would appear that the pre- 
vailing sentiment was influential even with so strong 
a conservative and extreme a Nationalist as Madi- 
son, in bringing about his amazing reversal of views 
which occurred soon after the Constitution was 
adopted. 1 But those who, like Marshall, were not 
shaken, were made firmer in their opinions by the 
very strength of the ideas thus making headway 
among the masses. 

An incident of the French Revolution almost 
within sight of the American coast gave to the dogma 
of equality a new and intimate meaning in the eyes 
of those who had begun to look with disfavor upon 
the results of Gallic radical thought. Marshall and 
Jefferson best set forth the opposite impressions 
made by this dramatic event. 

"Early and bitter fruits of that malignant phi- 
losophy," writes Marshall, "which . . . can coolly 

brethren in their glorious enterprise for the Establishment of Equal 

Liberty," as a newspaper describes the meeting, expresses in reserved 

and moderate fashion the popular feeling : — 

" See the bright flame arise, 

In yonder Eastern skies 

Spreading in veins; 
'T is pure Democracy 
Setting all Nations free 
Melting their chains." 

At this celebration an ox with gilded horns, one bearing the French 
flag and the other the American; carts of bread and two or three 
hogsheads of rum; and other devices of fancy and provisions for good 
cheer were the material evidence of the radical spirit. (See Colum- 
bian Centinel, Jan. 26, 1793.) 

1 It is certain that Madison could not possibly have continued in 
public life if he had remained a conservative and a Nationalist. (See 
next chapter.) 



THE FRENCH REVOLUTION 21 

and deliberately pursue, through oceans of blood, 
abstract systems for the attainment of some fancied 
untried good, were gathered in the French West 
Indies. . . . The revolutionists of France formed the 
mad and wicked project of spreading their doctrines 
of equality among persons [negroes and white peo- 
ple] between whom distinctions and prejudices exist 
to be subdued only by the grave. The rage excited 
by the pursuit of this visionary and baneful theory, 
after many threatening symptoms, burst forth on 
the 23d day of August 1791, with a fury alike de- 
structive and general. 

"In one night, a preconcerted insurrection of the 
blacks took place throughout the colony of St. 
Domingo; and the white inhabitants of the country, 
while sleeping in their beds, were involved in one 
indiscriminate massacre, from which neither age nor 
sex could afford an exemption. Only a few females, 
reserved for a fate more cruel than death, were in- 
tentionally spared; and not many were fortunate 
enough to escape into the fortified cities. The in- 
surgents then assembled in vast numbers, and a 
bloody war commenced between them and the 
whites inhabiting the towns." 1 

After the African disciples of French liberty 
had overthrown white supremacy in St. Domingo, 
Jefferson wrote his daughter that he had been in- 
formed "that the Patriotic party [St. Domingo rev- 
olutionists] had taken possession of 600 aristocrats 
& monocrats, had sent 200 of them to France, & 
were sending 400 here. ... I wish," avowed Jef- 

1 Marshall, ii, 239. 



n JOHN MARSHALL 

ferson, in this intimate family letter, "we could 
distribute our 400 [white French exiles] among the 
Indians, who would teach them lessons of liberty 
& equality." * 

Events in France marched swiftly from one bloody 
climax to another still more scarlet. All were faith- 
fully reflected in the views of the people of the 
United States. John Marshall records for us "the 
fervour of democracy" as it then appeared in our 
infant Republic. He repeats that, at first, every 
American wished success to the French reformers. 
But the later steps of the movement "impaired 
this . . . unanimity of opinion. ... A few who had 
thought deeply on the science of government . . . 
believed that . . . the influence of the galleries over 
the legislature, and of mobs over the executive; 
. . . the tumultuous assemblages of the people and 
their licentious excesses . . . did not appear to be 
the symptoms of a healthy constitution, or of gen- 
uine freedom. . . . They doubted, and they feared 
for the future." 

Of the body of American public opinion, however, 
Marshall chronicles that: "In total opposition to this 
sentiment was that of the public. There seems to 
be something infectious in the example of a pow- 
erful and enlightened nation verging towards de- 
mocracy, which imposes on the human mind, and 
leads human reason in fetters. . . . Long settled 
opinions yield to the overwhelming weight of such 
dazzling authority. It wears the semblance of be- 

1 Jefferson to Martha Jefferson Randolph, May 26, 1793; Workei 
Ford, vii, 345. 



THE FRENCH REVOLUTION 23 

ing the sense of mankind, breaking loose from the 
shackles which had been imposed by artifice, and 
asserting the freedom, and the dignity, of his 
nature." 

American conservative writers, says Marshall, 
"were branded as the advocates of royalty, and of 
aristocracy. To question the duration of the present 
order of things [in France] was thought to evidence 
an attachment to unlimited monarchy, or a blind 
prejudice in favour of British institutions. . . . The 
war in which the several potentates of Europe were 
engaged against France, although in almost every 
instance declared by that power, was pronounced 
to be a war for the extirpation of human liberty, and 
for the banishment of free government from the face 
of the earth. The preservation of the constitution 
of the United States was supposed to depend on its 
issue; and the coalition against France was treated 
as a coalition against America also." 1 

Marshall states, more clearly, perhaps, than any 
one else, American conservative opinion of the 
time: "The circumstances under which the aboli- 
tion of royalty was declared, the massacres which 
preceded it, the scenes of turbulence and violence 
which were acted in every part of the nation, ap- 
peared to them [American conservatives] to present 
an awful and doubtful state of things. . . . The 
idea that a republic was to be introduced and sup- 
ported by force, was, to them, a paradox in politics." 

Thus it was, he declares, that "the French re* 
volution will be found to have had great influence 

1 Marshall, ii, 249-51. 



24 JOHN MARSHALL 

on the strength of parties, and on the subsequent 
political transactions of the United States." x 

As the French storm increased, its winds blew 
ever stronger over the responsive waters of American 
opinion. Jefferson, that accurate barometer of pub- 
lic weather, thus registers the popular feeling: "The 
sensations it [the French Revolution] has produced 
here, and the indications of them in the public papers, 
have shown that the form our own government was 
to take depended much more on the events of France 
than anybody had before imagined." 2 Thus both 
Marshall and Jefferson bear testimony as to the 
determining effect produced in America by the vio- 
lent change of systems in France. 

William Short, whom Jefferson had taken to 
France as his secretary, when he was the American 
Minister to France, and who, when Jefferson re- 
turned to the United States, remained as charge 
d'affaires, 3 had written both officially and privately 
of what was going on in France and of the increas- 
ing dominance of the Jacobin Clubs. 4 Perhaps no 

1 Marshall, h\ 251-52. 

2 Jefferson to T. M. Randolph, Jan. 7, 1793; Works: Ford, vii, 
207. 

3 Mass. Hist. Collections (7th Series), i, 138. 

4 Typical excerpts from Short's reports to Jefferson are: July 20, 
1792: "Those mad & corrupted people in France who under the name 
of liberty have destroyed their own government [French Constitution 
of 1791] & disgusted all . . . men of honesty & property. . . . All the 
rights of humanity . . . are daily violated with impunity . . . uni- 
versal anarchy prevails. . . . There is no succour . . . against mobs & 
factions which have assumed despotic power." 

July 31 : "The factions which have lately determined the system . . . 
for violating all the bonds of civil society . . . have disgusted all, 
except the sans culottes . . . with the present order of things . . . the 
most perfect & universal disorder that ever reigned in any country. 



THE FRENCH REVOLUTION 25 

more trustworthy statement exists of the prevailing 
American view of the French cataclysm than that 
given in Jefferson's fatherly letter to his protege : — 
"The tone of your letters had for some time given 
me pain," wrote Jefferson, "on account of the ex- 
treme warmth with which they censured the pro- 
ceedings of the Jacobins of France. 1 . . . Many 
guilty persons [aristocrats] fell without the forms 
of trial, and with them some innocent: ... It was 
necessary to use the arm of the people, a machine 

Those who from the beginning took part in the revolution . . . have 
been disgusted, by the follies, injustice, & atrocities of the Jacobins. 
. . . All power [is] in the hands of the most mad, wicked & atrocious 
assembly that ever was collected in any country." 

August 15: "The Swiss guards have been massacred by the people 
& . . . streets literally are red with blood." 

October 12: "Their [French] successes abroad are unquestionably 
evils for humanity. The spirit which they will propagate is so destruc- 
tive of all order ... so subversive of all ideas of justice — the system 
they aim at so absolutely visionary & impracticable — that their 
efforts can end in nothing but despotism after having bewildered the 
unfortunate people, whom they render free in their way, in violence 
& crimes, & wearied them with sacrifices of blood, which alone they 
consider worthy of the furies whom they worship under the names 
of Liberie & EgalUe!" 

August 24: "I sh<? not be at all surprized to hear of the present 
leaders being hung by the people. Such has been the moral of this 
revolution from the beginning. The people have gone farther than 
their leaders. . . . We may expect ... to hear of such proceedings, un- 
der the cloak of liberty, SgalitS & patriotism as would disgrace any 
chambre ardente that has ever created in humanity shudders at the 
idea." (Short MSS., Lib. Cong.) 

These are examples of the statements to which Jefferson's letter, 
quoted in the text following, was the reply. Short's most valuable let- 
ters are from The Hague, to which he had been transferred. They are 
all the more important, as coming from a young radical whom events 
in France had changed into a conservative. And Jefferson's letter 
is conclusive of American popular sentiment, which he seldom opposed. 

1 Almost at the same time Thomas Paine was writing to Jefferson 
from Paris of "the Jacobins who act without either prudence or moral- 
ity." (Paine to Jefferson, April 20, 1793; Writings; Conway, hi, 132.) 



26 JOHN MARSHALL 

not quite so blind as balls and bombs, but blind to 
a certain degree. . . . 

"The liberty of the whole earth," continued Jef- 
ferson, "was depending on the issue of the contest, 
and was ever such a prize won with so little innocent 
blood? My own affections have been deeply wounded 
by some of the martyrs to this cause, but rather than 
it should have failed, I would have seen half the 
earth desolated. 

" Were there but an Adam & an Eve left in every 
country, & left free, it would be better than as it now 
is," declared Jefferson; and "my sentiments . . . are 
really those of 99 in an hundred of our citizens," was 
that careful political observer's estimate of American 
public opinion. "Your temper of mind," Jefferson 
cautions Short, "would be extremely disrelished if 
known to your countrymen. 

"There are in the U.S. some characters of oppo- 
site principles. . . . Excepting them, this country is 
entirely republican, friends to the constitution. . . . 
The little party above mentioned have espoused 
it only as a stepping stone to monarchy. . . . The 
successes of republicanism in France have given the 
coup de grace to their prospects, and I hope to their 
projects. 

" I have developed to you faithfully the sentiments 
of your country," Jefferson admonishes Short, "that 
you may govern yourself accordingly." * 

1 Jefferson to Short, Jan. 3, 1793; Works: Ford, vii, 202-05. 
Short had written Jefferson that Morris, then in Paris, would in- 
form him of French conditions. Morris had done so. For instance, 
he wrote officially to Jefferson, nearly four months before the lat- 
ter's letter to Short quoted in the text, that: "We have had one 



THE FRENCH REVOLUTION 27 

Jefferson's count of the public pulse was accurate. 
^'The people of this country [Virginia] . . . are 
unanimous & explicit in their sympathy with the 
Revolution" was the weather-wise Madison's re- 
port. 1 And the fever was almost as high in other 
States. 

When, after many executions of persons who had 
been "denounced" on mere suspicion of unfriend- 
liness to the new order of things, the neck of Louis 
XVI was finally laid beneath the knife of the guil- 
lotine and the royal head rolled into the execu- 
tioner's basket, even Thomas Paine was shocked. 
In a judicious letter to Danton he said : — 

"I now despair of seeing the great object of 
European liberty accomplished" because of "the 
tumultuous misconduct" of "the present revolu- 
tion" which "injure[s its] character . . . and discour- 
age[s] the progress of liberty all over the world. . . . 
There ought to be some regulation with respect to 
the spirit of denunciation that now prevails." 2 

So it was that Thomas Paine, in France, came to 
speak privately the language which, in America, at 
that very hour, was considered by his disciples to 
be the speech of "aristocracy," "monarchy," and 

week of unchecked murders, in which some thousands have perished 
in this city [Paris]. It began with between two and three hundred 
of the clergy, who would not take the oath prescribed by law. Thence 
these executors of speedy justice went to the Abbaye, where the pris- 
oners were confined who were at Court on the 10th. Madame da 
Lamballe . . . was beheaded and disembowelled; the head and en- 
trails paraded on pikes through the street, and the body dragged 
after them," etc., etc. (Morris to Jefferson, Sept. 10, 1792; Morris, 
i, 583-84.) 

1 Madison to Jefferson, June 17, 1793; Writings: Hunt, vi, 133. 

2 Paine to Danton, May 6, 1793; Writings: Conway, iii, 135-38. 



28 JOHN MARSHALL 

" despotism"; for the red fountains which drenched 
the fires of even Thomas Paine's enthusiasm did not 
extinguish the flames his burning words had lighted 
among the people of the United States. Indeed 
Paine, himself, was attacked for regretting the exe- 
cution of the King. 1 

Three months after the execution of the French 
King, the new Minister of the French Republic* 
" Citizen" Genet, arrived upon our shores. He 
landed, not at Philadelphia, then our seat of gov- 
ernment, but at Charleston, South Carolina. The 
youthful 2 representative of Revolutionary France 
was received by public officials with obsequious 
flattery and by the populace with a frenzy of en- 
thusiasm almost indescribable in its intensity. 

He acted on the welcome. He fitted out privateers, 
engaged seamen, issued letters of marque and re- 
prisal, administered to American citizens oaths of 
"allegiance" to the authority then reigning in Paris. 
All this was done long before he presented his 
credentials to the American Government. His prog- 
ress to our Capital was an unbroken festival of 
triumph. Washington's dignified restraint was in- 
terpreted as hostility, not only to Genet, but also 
to "liberty." But if Washington's heart was ice, the 
people's heart was fire. 

"We expect Mr. Genest here within a few days," 

1 "Truth," in the General Advertiser (Philadelphia), May 8, 1793. 
"Truth" denied that Louis XVI had aided us in our Revolution and 
insisted that it was the French Nation that had come to our assistance. 
Such was the disregard of the times for even the greatest of historic 
facts, and facts within the personal knowledge of nine tenths of the 
people then living. 

2 See Writings, J. Q. A.: Ford, i, 151. 



THE FRENCH REVOLUTION 29 

wrote Jefferson, just previous to the appearance of 
the French Minister in Philadelphia and before our 
ignored and offended President had even an oppor- 
tunity to receive him. "It seems," Jefferson con- 
tinued, "as if his arrival would furnish occasion for 
the people to testify their affections without respect 
to the cold caution of their government." x 

Again Jefferson measured popular sentiment ac- 
curately. Genet was made an idol by the people. 
Banquets were given in his honor and extravagant 
toasts were drunk to the Republic and the guillotine. 
Showers of fiery "poems" filled the literary air. 2 
"What hugging and tugging! What addressing 
and caressing! What mountebanking and chanting! 
with liberty caps and other wretched trumpery of 
sans culotte foolery!" exclaimed a disgusted conserv- 
ative. 3 

While all this was going on in America, Robes- 
pierre, as the incarnation of liberty, equality, and 
fraternity in France, achieved the summit of power 
and "The Terror" reached high tide. Marie An- 
toinette met the fate of her royal husband, and the 
executioners, overworked, could not satisfy the lust 
of the Parisian populace for human life. All this, 
however, did not extinguish American enthusiasm 
for French liberty. 

Responding to the wishes of their subscribers, who 
at that period were the only support of the press, the 
Republican newspapers suppressed such atrocities 
as they could, but when concealment was impossible, 

1 Jefferson to Madison, April 28, 1793; Works: Ford, vii, 301. 
* For examples of these, see Hazen, 220-45. 3 Graydon, 363. 



30 JOHN MARSHALL 

they defended the deeds they chronicled. 1 It was a 
losing game to do otherwise, as one of the few 
journalistic supporters of the American Government 
discovered to his sorrow. Fenno, the editor of the 
" Gazette of the United States," found opposition to 
French revolutionary ideas, in addition to his sup- 
port of Hamilton's popularly detested financial 
measures, 2 too much for him. The latter was load 
enough; but the former was the straw that broke the 
conservative editor's back. 

"I am . . . incapacitate[d] . . . from printing an- 
other paper without the aid of a considerable loan," 
wrote the bankrupt newspaper opponent of French 
doctrines and advocate of Washington's Administra- 
tion. "Since the 18th September, [1793] I have rec'd 
only 35i dollars," Fenno lamented. "Four years & 
an half of my life is gone for nothing; & worse (for I 
have a Debt of 2500 Dollars on my Shoulders), if 
at this crisis the hand of benevolence & patriotism 
is not extended." 3 

1 Freneau's National Gazette defended the execution of the King 
and the excesses of the Terror. (Hazen, 256; and see Cobbett, iii, 4.) 
While Cobbett, an Englishman, was a fanatic against the whole demo- 
cratic movement, and while his opinions are violently prejudiced, 
his statements of fact are generally trustworthy. "I have seen a 
bundle of Gazettes published all by the same man, wherein Mirabeau, 
Fayette, Brissot, Danton, Robespierre, and Barras, are all pane- 
gyrized and execrated in due succession." (lb., i, 116.) Cobbett did 
his best to turn the radical tide, but to no purpose. "Alas!" he ex- 
claimed, " what can a straggling pamphlet ... do against a hundred 
thousand volumes of miscellaneous falsehood in folio?" (76., iii, 5.) 

2 See next chapter. 

3 Fenno to Hamilton, Nov. 9, 1793; King, i, 501-02. "The hand 
of benevolence & patriotism" was extended, it appears: "If you 
can . . . raise 1000 Dollars in New York, I will endeavor to raise 
another Thousand at Philadelphia. If this cannot be done, we 
must lose his [Fenno's and the Gazette of the United States] services 



THE FRENCH REVOLUTION Si 

Forgotten by the majority of Americans was the 
assistance which the demolished French Monarchy 
and the decapitated French King had given the 
American army when, but for that assistance, our 
cause had been lost. The effigy of Louis XVI was 
guillotined by the people, many times every day in 
Philadelphia, on the same spot where, ten years be- 
fore, as a monument of their gratitude, these same 
patriots had erected a triumphal arch, decorated 
with the royal lilies of France bearing the motto, 
"They exceed in glory," surmounted by a bust of 
Louis inscribed, "His merit makes us remember 
him." J 

At a dinner in Philadelphia upon the anniversary 
of the French King's execution, the dead monarch 
was represented by a roasted pig. Its head was cut 
off at the table, and each guest, donning the liberty 
cap, shouted "tyrant" as with his knife he chopped 
the sundered head of the dead swine. 2 The news of 
the beheading of Louis's royal consort met with a 
like reception. "I have heard more than one young 
woman under the age of twenty declare," testifies 
Cobbett, "that they would willingly have dipped 
their hands in the blood of the queen of France." 3 

& he will be the Victim of his honest public spirit." (Hamilton to 
King, Nov. 11, 1793; King, i, 502.) 

1 Cobbett, i, footnote to 114. Curiously enough Louis XVI had 
believed that he was leading the French people in the reform move- 
ment. Thomas Paine, who was then in Paris, records that "The 
King . . . prides himself on being the head of the revolution." (Paine 
to Washington, May 1, 1790; Car. Rev.: Sparks, iv, 328.) 

2 Cobbett, i, 113-14; and see Hazen, 258. For other accounts of 
the "feasts" in honor of liberie, e"galit6, et fraterniti, in America, see 
ib., 165-73. 

8 Cobbett, i, 113. 



32 JOHN MARSHALL 

But if the host of American radicals whom Jef- 
ferson led and whose spirit he so truly interpreted 
were forgetful of the practical friendship of French 
Royalty in our hour of need, American conservatives, 
among whom Marshall was developing leadership, 
were also unmindful of the dark crimes against the 
people which, at an earlier period, had stained the 
Monarchy of France and gradually cast up the ac- 
count that brought on the inevitable settlement of 
the Revolution. The streams of blood that flowed 
were waters of Lethe to both sides. 

Yet to both they were draughts which produced 
in one an obsession of reckless unrestraint and in 
the other a terror of popular rule no less exagger- 
ated. * Of the latter class, Marshall was, by far, the 
most moderate and balanced, although the tragic 
aspect of the convulsion in which French liberty 
was born, came to him in an especially direct fashion, 
as we have seen from the Morris correspondence 
already cited. 

Another similar influence on Marshall was the case 
of Lafayette. The American partisans of the French 
Revolution accused this man, who had fought for 

1 For instance, the younger Adams wrote that the French Revolu- 
tion had "contributed more to . . . Van dalic ignorance than whole cen= 
turies can retrieve. . . . The myrmidons of Robespierre were as ready 
to burn libraries as the followers of Omar; and if the principle is finally 
to prevail which puts the sceptre of Sovereignty in the hands of 
European Sans Culottes, they will soon reduce everything to the 
level of their own ignorance." (John Quincy Adams to his father, 
July 27, 1795; Writings, J. Q. A.: Ford, i, 389.) 

And James A. Bayard wrote that: "The Barbarians who inundated 
the Roman Empire and broke to pieces the institutions of the civilized 
world, in my opinion innovated the state of things not more than the 
French revolution." (Bayard to Bassett, Dec. 30, 1797; Bayard 
Papers: Donnan, 47.) 



THE FRENCH REVOLUTION 33 

us in our War for Independence, of deserting the 
cause of liberty because he had striven to hold the 
Gallic uprising within orderly bounds. When, for 
this, he had been driven from his native land and 
thrown into a foreign dungeon, Freneau thus sang 
the conviction of the American majority: — 

" Here, bold in arms, and firm in heart, 
He help'd to gain our cause, 
Yet could not from a tyrant part, 
But, turn'd to embrace his laws ! " * 

Lafayette's expulsion by his fellow Republicans 
and his imprisonment by the allied monarchs, was 
brought home to John Marshall in a very direct and 
human fashion. His brother, James M. Marshall, 
was sent by Washington 2 as his personal representa- 
tive, to plead unofficially for Lafayette's release. 
Marshall tells us of the strong and tender personal 
friendship between Washington and Lafayette 
and of the former's anxiety for the latter. But, 
writes Marshall: "The extreme jealousy with which 
the persons who administered the government of 
France, as well as a large party in America, watched 
his [Washington's] deportment towards all those 
whom the ferocious despotism of the jacobins had 
exiled from their country" rendered "a formal 
interposition in favour of the virtuous and unfortu- 
nate victim [Lafayette] of their furious passions . . . 
unavailing." 

Washington instructed our ministers to do all they 
could "unofficially" to help Lafayette, says Mar- 
shall; and "a confidential person [Marshall's brother 

1 Freneau, iii, 86. a Marshall, ii, 387. 



34 JOHN MARSHALL 

James] had been sent to Berlin to solicit his dis- 
charge: but before this messenger had reached his 
destination, the King of Prussia had delivered over 
his illustrious prisoner to the Emperor of Germany." 1 
Washington tried "to obtain the powerful mediation 
of Britain" and hoped "that the cabinet of St. James 
would take an interest in the case ; but this hope was 
soon dissipated." Great Britain would do nothing to 
secure from her allies Lafayette's release. 2 

Thus Marshall, in an uncommonly personal way, 
was brought face to face with what appeared to him 
to be the injustice of the French revolutionists. La- 
fayette, under whom John Marshall had served at 
Brandy wine and Monmouth; Lafayette, leader of 
the movement in France for a free government like 
our own; Lafayette, hated by kings and aristocrats 
because he loved genuine liberty, and yet exiled 
from his own country by his own countrymen for 
the same reason 3 — this picture, which was the one 
Marshall saw, influenced him profoundly and per- 
manently. 

Humor as well as horror contributed to the re- 
pugnance which Marshall and men of his type felt 
ever more strongly for what they considered to be 
mere popular caprice. The American passion for 
equality had its comic side. The public hatred of all 

1 Austria. 2 Marshall, ii, 387. 

3 "They have long considered the M IS de lafayette as really the 
firmest supporter of the principles of liberty in France — & as they 
are for the most part no friends to these principles anywhere, they 
cannot conceal the pleasure they [the aristocracy at The Hague] 
feel at their [principles of liberty] supporters' being thus expelled 
from the country where he laboured to establish them." (Short to 
Jefferson, Aug. 24, 1792; Short MSS., Lib. Cong.) 



THE FRENCH REVOLUTION 35 

rank did not stop with French royalty and nobility. 
Because of his impassioned plea in Parliament for the 
American cause, a statue of Lord Chatham had been 
erected at Charleston, South Carolina; the people 
now suspended it by the neck in the air until the 
sculptured head was severed from the body. But 
Chatham was dead and knew only from the spirit 
world of this recognition of his bold words in behalf 
of the American people in their hour of trial and of 
need. In Virginia the statue of Lord Botetourt was 
beheaded. 1 This nobleman was also long since de- 
ceased, guilty of no fault but an effort to help the 
colonists, more earnest than some other royal gov- 
ernors had displayed. Still, in life, he had been 
called a "lord"; so off with the head of his statue! 

In the cities, streets were renamed. "Royal Ex- 
change Alley" in Boston became "Equality Lane"; 
and "Liberty Stump" was the name now given to 
the base of a tree that formerly had been called 
"Royal." In New York, "Queen Street became 
Pearl Street; and King Street, Liberty Street." 2 The 
liberty cap was the popular headgear and everybody 
wore the French cockade. Even the children, thus 
decorated, marched in processions, 3 singing, in a 
mixture of French and English words, the meaning 

1 Cobbett, i, 112. 

2 lb. When the corporation of New York City thus took all mon- 
archy out of its streets, Noah Webster suggested that, logically, the 
city ought to get rid of "this vile aristocratical name New York"; 
and, why not, inquired he, change the name of Kings County, Queens 
County, and Orange County? "Nay," exclaimed the sarcastic savant, 
"what will become of the people named King? Alas for the liberties 
of such people!" (Hazen, 216.) 

3 Hazen, 218. 



36 JOHN MARSHALL 

of which they did not in the least understand, the 
glories of "liberte, egalite, fraternite." 

At a town meeting in Boston resolutions asking 
that a city charter be granted were denounced as an 
effort to "destroy the liberties of the people; ... a 
link in the chain of aristocratic influence." 1 Titles 
were the especial aversion of the masses. Even be- 
fore the formation of our government, the people had 
shown their distaste for all formalities, and espe- 
cially for terms denoting official rank; and, after the 
Constitution was adopted, one of the first things 
Congress did was to decide against any form of ad- 
dress to the President. Adams and Lee had favored 
some kind of respectful designation of public offi- 
cials. This all-important subject had attracted the 
serious thought of the people more than had the 
form of government, foreign policy, or even taxes. 

Scarcely had Washington taken his oath of office 
when David Stuart warned him that "nothing could 
equal the ferment and disquietude occasioned by the 
proposition respecting titles. As it is believed to have 
originated from Mr. Adams and Mr. Lee, they are 
not only unpopular to an extreme, but highly odious. 
... It has given me much pleasure to hear every 
part of your conduct spoken of with high appro- 
bation, and particularly your dispensing with cere- 
mony, occasionally walking the streets ; while Adams 
is never seen but in his carriage and six. As trivial 
as this may appear," writes Stuart, "it appears to 
be more captivating to the generality, than matters 

1 J. Q. Adams, to T. B. Adams, Feb. 1, 1792; Writings, J. Q. A.: 
Ford, i, 111-13. 



THE FRENCH REVOLUTION 37 

of more importance. Indeed, I believe the great 
herd of mankind form their judgments of characters, 
more from such slight occurrences, than those of 
greater magnitude." 1 

This early hostility to ostentation and rank now 
broke forth in rabid virulence. In the opinion of the 
people, as influenced by the French Revolution, a 
Governor or President ought not to be referred to 
as "His Excellency"; nor a minister of the gospel 
as "Reverend." Even "sir" or "esquire" were, 
plainly, "monarchical." The title "Honorable" or 
"His Honor," when applied to any official, even a 
judge, was base pandering to aristocracy. "Mr." 
and "Mrs." were heretical to the new religion of 
equality. Nothing but "citizen" 2 would do — 
citizen judge, citizen governor, citizen clergyman, 
citizen colonel, major, or general, citizen baker, 
shoemaker, banker, merchant, and farmer, — citi- 
zen everybody. 

To address the master of ceremonies at a dinner 
or banquet or other public gathering as "Mr. Chair- 
man" or "Mr. Toastmaster" was aristocratic: only 
"citizen chairman" or "citizen toastmaster" was the 
true speech of genuine liberty. 3 And the name of the 
Greek letter college fraternity, Phi Beta Kappa, was 
the trick of kings to ensnare our unsuspecting youth. 
Even " <3>.B.K." was declared to be "an infringement 
of the natural rights of society." A college fraternity 
was destructive of the spirit of equality in American 

1 Stuart to Washington, July 14, 1789; Cor. Rev.: Sparks, iv, 
265-66; and see Randolph to Madison, May 19, 1789; Conway, 
124. 

2 See Hazen, 209-15. 3 lb., 213. 



38 JOHN MARSHALL 

colleges. 1 " Lese-republicanisme" was the term ap- 
plied to good manners and politeness. 2 

Such were the surface and harmless evidences of 
the effect of the French Revolution on the great mass 
of American opinion. But a serious and practical 
result developed. Starting with the mother organi- 
zation at Philadelphia, secret societies sprang up all 
over the Union in imitation of the Jacobin Clubs of 
France. Each society had its corresponding com- 
mittee; and thus these organizations were welded 
into an unbroken chain. Their avowed purpose was 
to cherish the principles of human freedom and to 
spread the doctrine of true republicanism. But they 
soon became practical political agencies; and then, 
like their French prototype, the sowers of disorder 
and the instigators of insurrection. 3 

The practical activities of these organizations 
aroused, at last, the open wrath of Washington. 
They "are spreading mischief far and wide," he 
wrote; 4 and he declared to Randolph that "if these 
self-created societies cannot be discountenanced,, 
they will destroy the government of this country." 5 

Conservative apprehensions were thus voiced by 
George Cabot: "We have seen . . . the . . . repre- 
sentatives of the people butchered, and a band of 

1 See Hazen, 215. 2 Cobbett, i, 111. 

3 For an impartial and comprehensive account of these clubs see 
Hazen, 188-208; also, Marshall, ii, 269 et seq. At first many excellent 
and prominent men were members; but these withdrew when the 
clubs fell under the control of less unselfish and high-minded persons. 

4 Washington to Thruston, Aug. 10, 1704; Writings: Ford, xii, 
451. 

5 Washington to Randolph, Oct. 16, 1794; ib., 475; and see Wash- 
ington to Lee, Aug. 26, 1794; ib., 455. 



THE FRENCH REVOLUTION 39 

relentless murderers ruling in their stead with rods 
of iron. Will not this, or something like it, be the 
wretched fate of our country? ... Is not this hos- 
tility and distrust [to just opinions and right senti- 
ments] chiefly produced by the slanders and false- 
hoods which the anarchists incessantly inculcate?" * 

Young men like John Quincy Adams of Massa- 
chusetts and John Marshall of Virginia thought that 
"the rabble that followed on the heels of Jack Cade 
could not have devised greater absurdities than" 
the French Revolution had inspired in America; 2 
but they were greatly outnumbered by those for 
whom Jefferson spoke when he said that "I feel that 
the permanence of our own [Government] leans" on 
the success of the French Revolution. 3 

The American democratic societies, like their 
French originals, declared that theirs was the voice 
of "the people," and popular clamor justified the 
claim. 4 Everybody who dissented from the edicts 
of the clubs was denounced as a public robber or 
monarchist. " What a continual yelping and barking 
are our Swindlers, Aristocrats, Refugees, and Brit- 
ish Agents making at the Constitutional Societies" 
which were "like a noble mastiff . . . with . . . im- 
potent and noisy puppies at his heels," cried the 
indignant editor of the "Independent Chronicle" 
of Boston, 5 to whom the democratic societies were 
"guardians of liberty." 

1 Cabot to Parsons, Aug. 12, 1794; Lodge: Cabot, 79. 

2 J. Q. Adams to John Adams, Oct. 19, 1790; Writings, J. Q. A : 
Ford, i, 64. 

3 Jefferson to Rutledge, Aug. 29, 1791; Works: Ford, vi, 309. 

4 See Hazen, 203-07. 6 September 18, 1794. 



40 JOHN MARSHALL 

While these organizations strengthened radical 
opinion and fashioned American sympathizers of the 
French Revolution into disciplined ranks, they also 
solidified the conservative elements of the United 
States. Most viciously did the latter hate these 
"Jacobin Clubs," the principles they advocated, 
and their interference with public affairs. "They 
were born in sin, the impure offspring of Genet," 
wrote Fisher Ames. 

"They are the few against the many; the sons of 
darkness (for their meetings are secret) against those 
of the light; and above all, it is a town cabal, at- 
tempting to rule the country" 1 This testy New 
Engiander thus expressed the extreme conservative 
feeling against the "insanity which is epidemic": 2 
"This French mania," said Ames, "is the bane of 
our politics, the mortal poison that makes our peace 
so sickly." 3 "They have, like toads, sucked poison 
from the earth. They thirst for vengeance." 4 "The 
spirit of mischief is as active as the element of fire 
and as destructive." 5 Ames describes the activities 
of the Boston Society and the aversion of the "better 
classes" for it: "The club is despised here by men of 
right heads," he writes. "But . . . they [the members 
of the Club] poison every spring; they whisper lies 
to every gale ; they are everywhere, always acting like 
Old Nick and his imps. . . . They will be as busy as 
Macbeth's witches at the election." 6 

1 Ames to Dwight, Sept. 11, 1794; Works: Ames, i, 150. 

2 Cabot to King, July 25, 1795; Lodge: Cabot, 80. 

3 Ames to Gore, March 26, 1794; Works: Ames, i, 139. 

4 Ames to Minot, Feb. 20, 1793; ib., 128. 
6 Ames to Gore, Jan. 28, 1794; ib., 134. 

6 Ames to Dwight, Sept. 3, 1794; ib., 148. 



THE FRENCH REVOLUTION 41 

In' Virginia the French Revolution and the Amer- 
ican "Jacobins" helped to effect that change in 
Patrick Henry's political sentiments which his in- 
creasing wealth had begun. "If my Country," 
wrote Henry to Washington, "is destined in my 
day to encounter the horrors of anarchy, every 
power of mind or body which I possess will be ex- 
erted in support of the government under which 1 
live." * As to France itself, Henry predicted that 
"anarchy will be succeeded by despotism" and 
Bonaparte, "Caesar-like, subvert the liberties of his 
country." 2 

Marshall was as much opposed to the democratic 
societies as was Washington, or Cabot, or Ames, but 
he was calmer in his opposition, although vitriolic 
enough. When writing even ten years later, after 
time had restored perspective and cooled feeling, 
Marshall says that these "pernicious societies" 3 
were "the resolute champions of all the encroach- 
ments attempted by the agents of the French re- 
public on the government of the United States, and 
the steady defamers of the views and measures of 
the American executive." 4 He thus describes their 
decline: — 

"The colossean power of the [French] clubs, which 
had been abused to an excess that gives to faithful 
history the appearance of fiction, fell with that of 
their favourite member, and they sunk into long 
merited disgrace. The means by which their polit- 
ical influence had been maintained were wrested 

1 Henry to Washington, Oct. 16, 1795; Henry, ii, 559. 
1 2 lb., 576. 3 Marshall, ii, 353. 4 lb., 269. 



42 JOHN MARSHALL 

from them; and, in a short time, their meetings were 
prohibited. Not more certain is it that the boldest 
streams must disappear, if the fountains which fed 
them be emptied, than was the dissolution of the 
democratic societies of America, when the Jacobin 
clubs were denounced by France. As if their destinies 
depended on the same thread, the political death of 
the former was the unerring signal for that of the 
latter." x 

Such was the effect of the French Revolution on 
American thought at the critical period of our new 
Government's first trials. To measure justly the 
speech and conduct of men during the years we are 
now to review, this influence must always be borne 
in mind. It was woven into every great issue that 
arose in the United States. Generally speaking, the 
debtor classes and the poorer people were partisans 
of French revolutionary principles; and the creditor 
classes, the mercantile and financial interests, were 
the enemies of what they called "Jacobin philoso- 
phy." In a broad sense, those who opposed taxes, 
levied to support a strong National Government, 
sympathized with the French Revolution and be- 
lieved in its ideas; those who advocated taxes for 
that purpose, abhorred that convulsion and feared 
its doctrines. 

Those who had disliked government before the 
Constitution was established and who now hated Na- 
tional control, heard in the preachings of the French 
revolutionary theorists the voice of their hearts; 
while those who believed that government is essen- 
1 Marshall, ii, 353-54. 



THE FRENCH REVOLUTION 43 

tial to society and absolutely indispensable to the 
building of the American Nation, heard in the lan- 
guage and saw in the deeds of the French Revolu- 
tion the forces that would wreck the foundations of 
the state even while they were but being laid and, 
in the end, dissolve society itself. Thus were the 
ideas of Nationality and localism in America brought 
into sharper conflict by the mob and guillotine in 
France. 

All the passion for irresponsible liberty which the 
French Revolution increased in America, as well as 
all the resentment aroused by the financial measures 
and foreign policy of the "Federal Administrations, " 
were combined in the opposition to and attacks 
upon a strong National Government. Thus provin- 
cialism in the form of States' Rights was given a 
fresh impulse and a new vitality. Through nearly 
all the important legislation and diplomacy of those 
stirring and interpretative years ran, with ever in- 
creasing clearness, the dividing line of Nationalism 
as against localism. 

Such are the curious turns of human history. 
Those whom Jefferson led profoundly believed that 
they were fighting for human rights; and in their 
view and as a practical matter at that particular 
time this sacred cause meant State Rights. For 
everything which they felt to be oppressive, unjust, 
and antagonistic to liberty, came from the National 
Government. By natural contrast in their own 
minds, as well as by assertions of their leaders, the 
State Governments were the sources of justice and 
the protectors of the genuine rights of man. 



44 JOHN MARSHALL 

In the development of John Marshall as well as of 
his great ultimate antagonist, Thomas Jefferson, dur- 
ing the formative decade which we are now to con- 
sider, the influence of the French Revolution must 
never be forgotten. Not a circumstance of the public 
lives of these two men and scarcely an incident of 
their private experience but was shaped and colored 
by this vast series of human events. Bearing in mind 
the influence of the French Revolution on American 
opinion, and hence, on Marshall and Jefferson, let 
us examine the succeeding years in the light of this 
determining fact. 



CHAPTER II 

A VIRGINIA NATIONALIST 

Lace Congress up straitly within the enumerated powers. (Jefferson.) 

Construe the constitution liberally in advancement of the common good. 
(Hamilton.) 

To organize government, to retrieve the national character, to establish a 
system of revenue, to create public credit, were among the duties imposed 
upon them. (Marshall.) 

I trust in that Providence which has saved us in six troubles, yea, in seven, 
to rescue us again. (Washington.) 

The Constitution's narrow escape from defeat in 
the State Conventions did not end the struggle 
against the National principle that pervaded it. 1 The 
Anti-Nationalists put forth all their strength to send 
to the State Legislatures and to the National House 
and Senate as many antagonists of the National 
idea as possible. 2 "Exertions will be made to en- 
gage two thirds of the legislatures in the task of 
regularly undermining the government" was Madi- 
son's "hint" to Hamilton. 3 

Madison cautioned Washington to the same ef- 
fect, suggesting that a still more ominous part of 
the plan was "to get a Congress appointed in the 

1 Marshall, ii, 150-51. "The agitation had been too great to be 
suddenly calmed; and for the active opponents of the system [Con- 
stitution] to become suddenly its friends, or even indifferent to its 
fate, would have been a victory of reason over passion." (lb.; and 
see Beard: Econ. 0. J. D., 85, 101, 102-07.) 

2 "The effort was made to fill the legislature with the declared 
enemies of the government, and thus to commit it, in its infancy, to 
the custody of its foes." (Marshall, ii, 151.) 

3 Madison to Hamilton, June 27, 1788; Hamilton MSS., Lib. 
Cong. Madison adds this cryptic sentence: "This hint may not be 
unworthy of your attention." 



46 JOHN MARSHALL 

first instance that will commit suicide on their own 
Authority." * Not yet had the timorous Madison 
personally felt the burly hand of the sovereign peo- 
ple so soon to fall upon him. Not yet had he under- 
gone that familiar reversal of principles wrought 
in those politicians who keep an ear to the ground. 
But that change was swiftly approaching. Even 
then the vox populi was filling the political heavens 
with a clamor not to be denied by the ambitious. 
The sentiment of the people required only an organ- 
izer to become formidable and finally omnipotent. 
Such an artisan of public opinion was soon to ap- 
pear. Indeed, the master political potter was even 
then about to start for America where the clay for 
an Anti-Nationalist Party was almost kneaded for 
the moulder's hands. Jefferson was preparing to leave 
France; and not many months later the great poli- 
tician landed on his native soil and among his fel- 
low citizens, who, however, welcomed him none too 
ardently. 2 

1 Madison to Washington, June 27, 1788; Writings: Hunt, v, 234. 
Madison here refers to the project of calling a new Federal Conven- 
tion for the purpose of amending the Constitution or making a new one. 

Randolph was still more apprehensive. "Something is surely 
meditated against the new Constitution more animated, forcible, and 
violent than a simple application for calling a Convention." (Ran- 
dolph to Madison, Oct. 23, 1788; Conway, 118.) 

2 When Jefferson left Virginia for France, his political fortunes 
were broken. (Eckenrode: R. V., chap, viii; and Dodd, 63-64; and 
Ambler, 35-36.) The mission to France at the close of the American 
Revolution, while "an honor," was avoided rather than sought by 
those who were keen for career. (Dodd, 36-39.) 

Seldom has any man achieved such a recovery as that of Jefferson 
in the period now under review. Perhaps Talleyrand's rehabilitation 
most nearly approaches Jefferson's achievement. From the depths 
of disfavor this genius of party management climbed to the heights 
of popularity and fame. 



A VIRGINIA NATIONALIST 47 

No one knew just where Jefferson stood on the fun- 
damental question of the hour when, with his two 
daughters, he arrived in Virginia in 1789. The bril- 
liant Virginian had uttered both Nationalist and 
Anti-Nationalist sentiments. "I am not of the party 
of the Federalists," he protested, "but I am much 
farther from that of the Antifederalists." Indeed, 
declared Jefferson, "If I could not go to heaven but 
with a party, I would not go there at all." * 

His first opinions of the Constitution were, as we 
have seen, unfavorable. But after he had learned 
that the new Government was to be a fact, Jefferson 
wrote Washington: "I have seen with infinite pleas- 
ure our new constitution accepted." Careful study 
had taught him, he said, "that circumstances may 
arise, and probably will arise, wherein all the re- 
sources of taxation will be necessary for the safety 
of the state." He saw probability of war which "re- 
quires every resource of taxation & credit." He 
thought that "the power of making war often pre- 
vents it." 2 

Thus Jefferson could be quoted on both sides and 
claimed by neither or by both. But, because of his 
absence in France and of the reports he had received 
from the then extreme Nationalist, Madison, he had 
not yet apprehended the people's animosity to Na- 
tional rule. Upon his arrival in Virginia, however, 
he discovered that " Antif ederalism is not yet dead 

1 Jefferson to Hopkinson, March 13, 1789; Works: Ford, v, 456. 

2 Jefferson to Washington, Paris, Dec. 4, 1788; Works: Ford, v, 
437-38. Compare with Jefferson's statements when the fight was 
on against ratifying the Constitution. (See vol. I, chap, viir, also Jef- 
ferson to Humphreys, Paris, March 18, 1789; Works: Ford, v, 470.) 



48 JOHN MARSHALL 

in this country." x That much, indeed, was clear at 
first sight. The Legislature of Virginia, which met 
three months after her Convention had ratified the 
Constitution, was determined to undo that work, as 
Madison had foreseen. 2 

That body was militantly against the new Govern- 
ment as it stood. "The conflict between the powers 
of the general and state governments was coeval 
with those governments," declares Marshall. "The 
old line of division was still as strongly marked as 
ever." The enemies of National power thought that 
" liberty could be endangered only by encroachments 
upon the states; and that it was the great duty of 
patriotism to restrain the powers of the general gov- 
ernment within the narrowest possible limits." On 
the other hand, the Nationalists, says Marshall, 
"sincerely believed that the real danger which 
threatened the republic was to be looked for in the 
undue ascendency of the states." 3 

Patrick Henry was supreme in the House of Dele- 
gates. Washington was vastly concerned at the 
prospect. He feared that the enemies of National- 
ism would control the State Legislature and that 

1 Jefferson to Short, Dec. 14, 1789; Works: Ford, vi, 24. 

2 The Legislature which met on the heels of the Virginia Constitu- 
tional Convention hastened to adjourn in order that its members 
might attend to their harvesting. (Monroe to Jefferson, July 12, 
1788; Monroe's Writings: Hamilton, i, 188.) But at its autumn ses- 
sion, it made up for lost time in its practical display of antagonism 
to the Nationalist movement. 

3 Marshall, ii, 205-26. Throughout this chapter the terms "Na- 
tionalist" and "Anti-Nationalist" are used instead of the custom- 
ary terms "Federalist" and "Anti-Federalist," the latter not clearly 
expressing the fundamental difference between the contending polit- 
ical forces at that particular time. 



A VIRGINIA NATIONALIST 49 

it would respond to New York's appeal for a new 
Federal Constitutional Convention. He was "par- 
ticularly alarmed" that the General Assembly 
would elect Senators "entirely anti-Federal." 1 His 
apprehension was justified. Hardly a week passed 
after the House convened until it passed resolu- 
tions, drawn by Henry, 2 to answer Clinton's letter, 
to ask Congress to call a new Federal Conven- 
tion, and to cooperate with other States in that 
business. 

In vain did the Nationalist members strive to 
soften this resolution. An amendment which went 
so far as to request Congress to recommend to the 
several States "the ratification of a bill of rights" 
and of the twenty amendments proposed by the Vir- 
ginia Convention, was defeated by a majority of 
46 out of a total vote of 124. 3 Swiftly and without 
mercy the triumphant opposition struck its next 
blow. Washington had urged Madison to stand for 
the Senate, 4 and the Nationalists exerted themselves 
to elect him. Madison wrote cleverly in his own 
behalf. 5 But he had no hope of success because it 
was "certain that a clear majority of the assembly 
are enemies to the Gov-." 6 Madison was still the 
ultra-Nationalist, who, five years earlier, had wanted 

1 Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415. 

2 lb., 416-18. 

3 Journal, H.D. (Oct. 30, 1788), 16-17; see Grigsby, ii, 319; also 
see the vivid description of the debate under these resolutions in 
Henry, ii, 418-23. 

4 Carrington to Madison, Oct. 19, 1788; quoted in Henry, ii, 415. 

6 Madison to Randolph Oct. 17, 1788; to Pendleton, Oct. 20, 1788; 
Writings: Hunt, v, 269-79. 
6 Madison to Randolph, Nov. 2, 1788; Writings: Hunt, v, 296. 



50 JOHN MARSHALL 

the National Government to have an absolute veto 
on every State law. 1 

Henry delivered "a tremendous philippic" against 
Madison as soon as his name was placed before the 
General Assembly. 2 Madison was badly beaten, and 
Richard Henry Lee and William Grayson were 
chosen as the first Senators from Virginia under the 
new National Government. 3 The defeated champion 
of the Constitution attributed Henry's attack and 
his own misfortune to his Nationalist principles: 
Henry's "enmity was levelled . . . ag st the whole 
system; and the destruction of the whole system, I 
take to be the secret wish of his heart." 4 

In such fashion did Madison receive his first 
chastisement for his Nationalist views and labors. 
He required no further discipline of a kind so rough 
and humiliating; and he sought and secured election 
to the National House of Representatives, 5 with 
opinions much subdued and his whole being made 
pliant for the wizard who so soon was to invoke his 
spell over that master mind. 

Though Marshall was not in the Virginia Legis- 
lature at that session, it is certain that he worked 
with its members for Madison's election as Senator. 

1 See vol. i of this work. 

2 Henry, ii, 427; see also Scott, 172. 

3 Journal, H.D. (Nov. 8, 1788), 32; see also Conway, 120; and 
Henry, ii, 427-28. 

4 Madison to Randolph, Nov. 2, 1788; Writings: Hunt, v, 295. 

6 Monroe became a candidate against Madison and it was "thought 
that he [would] . . . carry his election." (Mason to John Mason, 
Dec. 18, 1788; Rowland, ii, 304.) But so ardent were Madison's as- 
surances of his modified Nationalist views that he was elected. His 
majority, however, was only three hundred. (Monroe to Jefferson, 
Feb. 15, 1789; Monroe's Writings: Hamilton, i, 199.) 



A VIRGINIA NATIONALIST 51 

But even Marshall's persuasiveness was unavailing. 
"Nothing," wrote Randolph to Madison, "is left un- 
done which can tend to the subversion of the new 
government." x 

Hard upon its defeat of Madison the Legislature 
adopted an ominous address to Congress. "The 
sooner . . . the [National] government is possessed of 
the confidence of the people . . . the longer its dura- 
tion" — such was the language and spirit of Vir- 
ginia's message to the lawmakers of the Nation, 
even before they had assembled. 2 The desperate 
Nationalists sought to break the force of this blow. 
They proposed a substitute which even suggested 
that the widely demanded new Federal Convention 
should be called by Congress if that body thought 
best. But all to no purpose. Their solemn 3 amend- 
ment was beaten by a majority of 22 out of a total 
vote of 122. 4 

Thus again was displayed that hostility to Na- 
tionalism which was to focus upon the newborn Na- 
tional Government every burning ray of discontent 
from the flames that sprang up all over the country 
during the constructive but riotous years that fol- 
lowed. Were the people taxed to pay obligations 
incurred in our War for Independence? — the Na- 

1 Randolph to Madison, Nov. 10, 1788; Conway, 121. 

2 Journal, H.D. (Nov. 14, 1788), 42-44. Also see Annals, 1st Cong., 
1st Sess., 259. 

3 The Nationalist substitute is pathetic in its apprehensive tone. 
It closes with a prayer "that Almighty God in his goodness and wisdom 
will direct your councils to such measures as will establish our lasting 
peace and welfare and secure to our latest posterity the blessings of 
freedom ; and that he will always have you in his holy keeping." (Jour- 
nal, H.D. (Nov. 14, 1788), 43.) 

4 lb., 44. 



52 JOHN MARSHALL 

tional Government was to blame. Was an excise 
laid on whiskey, " the common drink of the nation" 1 
— it was the National Government which thus 
wrung tribute from the universal thirst. Were those 
who owed debts compelled, at last, to pay them? — 
it was the National Government which armed the 
creditor with power to recover his own. 

Why did we not aid French Republicans against 
the hordes of "despotism"? Because the National 
Government, with its accursed Neutrality, would not 
let us ! And who but the National Government would 
dare make a treaty with British Monarchy, sacri- 
ficing American rights? Speculation and corruption, 
parade and ostentation, — everything that could, 
reasonably or unreasonably, be complained of, — 
were, avowed the Anti-Nationalists, the wretched 
but legitimate offspring of Nationalism. The rem- 
edy, of course, was to weaken the power of the Na- 
tion and strengthen that of the States. Such was 
the course pursued by the foes of Nationalism, that 
we shall trace during the first three administrations 
of the Government of the United States. 

Thus, the events that took place between 1790 and 
1800, supplemented and heated by the French Revo- 
lution, developed to their full stature those antago- 
nistic theories of which John Marshall and Thomas 
Jefferson were to become the chief expounders. 
Those events also finished the preparation of these 
two men for the commanding stations they were to 

1 Pennsylvania Resolutions : Gallatin's Writings: Adams, i, 3. ThiS 
was unjust to New England, where rum was "the common drink of thi 
nation" and played an interesting part in our tariff laws and NeV* 
England trade. 



A VIRGINIA NATIONALIST 53 

occupy. The radical politician and States' Rights 
leader on the one hand, and the conservative poli- 
tician and Nationalist jurist on the other hand, were 
finally settled in their opinions during these devel- 
oping years, at the end of which one of them was to 
occupy the highest executive office and the other 
the highest judicial office in the Government. 

It was under such circumstances that the National 
Government, with Washington at its head, began its 
uncertain career. If the Legislature of Virginia had 
gone so far before the infant National establishment 
was under way, how far might not succeeding Legis- 
latures go? No one knew. But it was plain to all 
that every act of the new Administration, even with 
Washington at the helm, would be watched with 
keen and jealous eyes; and that each Nationalist 
turn of the wheel would meet with prompt and stern 
resistance in the General Assembly of the greatest 
of American Commonwealths. Mutiny was already 
aboard. 

John Marshall, therefore, determined again to 
seek election to the House of Delegates. 

Immediately upon the organization of the Na- 
tional Government, Washington appointed Mar- 
shall to be United States Attorney for the District 
of Virginia. The young lawyer's friends had sug- 
gested his name to the President, intimating that he 
wished the place. 1 Marshall, .high in the esteem of 
every one, had been consulted as to appointments on 
the National bench, 2 and Washington gladly named 

1 Washington to Marshall, Nov. 23, 1789; MS., Lib. Cong. 

2 Kandolph to Madison, July 19, 1789; Conway, 127. 



54 JOHN MARSHALL 

him for District Attorney. But when notified of his 
appointment, Marshall declined the honor. 

A seat in the Virginia Legislature, was, however, 
quite another matter. Although his work as a leg- 
islator would interfere with his profession much 
more than would his duties as United States At- 
torney, he could be of practical service to the 
National Government in the General Assembly of 
the State where, it was plain, the first battle for 
Nationalism must be fought. 

The Virginia Nationalists, much alarmed, urged 
him to make the race. The most popular man in 
Richmond, he was the only Nationalist who could 
be elected by that constituency; and, if chosen, 
would be the ablest supporter of the Administration 
in the Legislature. Although the people of Henrico 
County were more strongly against a powerful Na- 
tional Government than they had been when they 
sent Marshall to the Constitutional Convention the 
previous year, they nevertheless elected him; and in 
1789 Marshall once more took his seat as a member 
of Virginia's law-making and law-marring body. 

He was at once given his old place on the two prin- 
cipal standing committees; 1 and on special commit- 
tees to bring in various bills, 2 among them one con- 
cerning descents, a difficult subject and of particular 
concern to Virginians at that time. 3 As a member of 
the Committee of Privileges and Elections, he passed 
on a hotly contested election case. 4 He was made a 

1 Journal, H.D. (Oct. 20, 1789), 4. 2 lb., 7-16. 

3 lb., 16. Marshall probably drew the bill that finally passed. 
He carried it from the House to the Senate. (lb., 136.) 

4 lb. (Oct. 28, 1790), 19-22. Whether or not a voter owned land 
Was weighed in delicate scales. Even "treating" was examined. 



A VIRGINIA NATIONALIST 55 

member of the important special committee to 
report upon the whole body of laws in force in Vir- 
ginia, and helped to draw the committee's report, 
which is comprehensive and able. 1 The following 
year he was appointed a member of the committee 
to revise the tangled laws of the Commonwealth. 2 

The irrepressible subject of paying taxes in some- 
thing else than money soon came up. Marshall voted 
against a proposition to pay the taxes in hemp and 
tobacco, which was defeated by a majority of 37 
out of a total vote of 139; and he voted for the reso- 
lution "that the taxes of the present year ought to 
be paid in specie only or in warrants equivalent 
thereto," which carried. 3 He was added to the com- 
mittee on a notable divorce case. 4 

Marshall was, of course, appointed on the special 
committee to bring in a bill giving statehood to the 
District of Kentucky. 5 Thus he had to do with the 
creation of the second State to be admitted after 
the Constitution was adopted. A bill was passed 
authorizing a lottery to raise money to establish an 

1 Journal, H.D. (Oct. 28, 1790), 24-29. 

2 lb., 1st Sess. (1790), 41; and 2d Sess. (Dec. 8), 121-22. For 
extent of this revision see Conway, 130. 

3 Journal, H.D. (1789), 57-58. 

4 lb., 78. See report of the committee in this interesting case. 
(76., 103.) The bill was passed. (lb., 141.) At that time divorces 
in Virginia could be had only by an act of the Legislature. Contrast 
the above case, where the divorce was granted for cruelty, abandon- 
ment, waste of property, etc., with that of the Mattauer case (ib. 
(1793), 112, 126), where the divorce was refused for admitted infidel- 
ity on the part of the wife who bore a child by the brother of her 
husband while the latter was abroad. 

5 Ib. (1789), 96. Kentucky was then a part of Virginia and legis- 
lation by the latter State was necessary. It is more than probable 
that Marshall drew this important statute, which passed. (Ib., 115, 
131, 141.) 



56 JOHN MARSHALL 

academy in Marshall's home county, Fauquier. 1 He 
voted with the majority against the perennial Bap- 
tist petition to democratize religion; 2 and for the 
bill to sell lands for taxes. 3 

Marshall was appointed on the committee to 
bring in bills for proceeding against absent debtors; 4 
on another to amend the penal code; 5 and he was 
made chairman of the special committee to examine 
the James River Company, 6 of which he was a stock- 

1 Journal, H.D. (1789), 112. At this period, lotteries were the 
common and favorite methods of raising money for schools, and other 
public institutions and enterprises. Even the maintenance of ceme- 
teries was provided for in this way. The Journals of the House of 
Delegates are full of resolutions and Hening's Statutes contain many 
acts concerning these enterprises. (See, for example, Journal, H.D. 
(1787), 16-20; (1797), 39.) 

2 An uncommonly able state paper was laid before the House of 
Delegates at this session. It was an arraignment of the Virginia Con- 
stitution of 1776, and mercilessly exposed, without the use of direct 
terms, the dangerous political machine which that Constitution made 
inevitable; it suggested "that as harmony with the Federal Govern- 
ment ... is to be desired our own Constitution ought to be compared 
with that of the United States and retrenched where it is repugnant"; 
and it finally recommended that the people instruct their repre- 
sentatives in the Legislature to take the steps for reform. The 
author of this admirable petition is unknown. (Journal, H.D. (1789), 
113.) 

From this previous vote for a new Constitution, it is probable that 
Marshall warmly supported this resolution. But the friends of the 
old and vicious system instantly proposed an amendment "that the 
foregoing statement contains principles repugnant to Republican 
Government and dangerous to the freedom of this country, and, there- 
fore, ought not to meet with the approbation of this House or be 
recommended to the consideration of the people"; and so strong were 
they that the whole subject was dropped by postponement, without 
further contest. (Journal, H.D. (1789), 108-09.) 

3 lb. (Nov. 17, 1789), 20. 4 lb. (Nov. 13, 1789), 12. 
6 lb. (Nov. 16, 1789), 14. 

6 lb. (Nov. 27, 1789), 49. The James River Company was formed in 
1784. Washington was its first president. (Randolph to Washington, 
Aug. 8, 1784; Conway, 58.) Marshall's Account Book shows many 
payments on stock in this company. 



A VIRGINIA NATIONALIST 57 

holder. Such are examples of his routine activities 
in the Legislature of 1789. 

The Legislature instructed the Virginia Senators 
in Congress "to use their utmost endeavors to pro- 
cure the admission of the citizens of the United 
States to hear the debates of their House, when- 
ever they are sitting in their legislative capacity." 1 

An address glowing with love, confidence, and 
veneration was sent to Washington. 2 Then Jefferson 
came to Richmond; and the Legislature appointed 
a committee to greet him with polite but coldly for- 
mal congratulations. 3 No one then foresaw that a 
few short years would turn the reverence and affec- 
tion for Washington into disrespect and hostility; 
and the indifference toward Jefferson into fiery 
enthusiasm. 

The first skirmish in the engagement between the 
friends and foes of a stronger National Government 
soon came on. On November 30, 1789, the House 
ratified the first twelve amendments to the Con- 
stitution, 4 which the new Congress had submitted 
to the States; but three days later it was proposed 

1 Journal, H.D. (1789), 117, 135. For many years after the Consti- 
tution was adopted the United States Senate sat behind closed doors. 
The Virginia Legislature continued to demand public debate in the 
National Senate until that reform was accomplished. (See Journal, 
H.D. (Oct. 25, 1791), 14; (Nov. 8, 1793), 57, etc.) 

In 1789 the Nationalists were much stronger in the Legislatures of 
the other States than they had been in the preceding year. Only three 
States had answered Virginia's belated letter proposing a new Federal 
Convention to amend the Constitution. Disgusted and despondent, 
Henry quitted his seat in the House of Delegates in the latter part of 
November and went home in a sulk. (Henry, ii, 448-49; Conway, 
131.) 

2 Journal, H.D. (1789), 17, 19, 98. 3 76., 107-12. 
* lb., 90-91. 



58 JOHN MARSHALL 

that the Legislature urge Congress to reconsider the 
amendments recommended by Virginia which Con- 
gress had not adopted. 1 An attempt to make this 
resolution stronger was defeated by the deciding 
vote of the Speaker, Marshall voting against it. 2 

The Anti-Nationalist State Senate refused to con- 
cur in the House's ratification of the amendments 
proposed by Congress; 3 and Marshall was one of 
the committee to hold a conference with the Senate 
committee on the subject. 

After Congress had passed the laws necessary to 
set the National Government in motion, Madison 
had reluctantly offered his summary of the volume 
of amendments to the Constitution recommended 
by the States "in order," as he said, "to quiet that 
anxiety which prevails in the public mind." 4 The 
debate is illuminating. The amendments, as agreed 
to, fell far short of the radical and extensive altera- 
tions which the States had asked and were under- 
stood to be palliatives to popular discontent. 5 

1 Journal, H.D. (1789), 96. 2 lb., 102. 

3 lb., 119. The objections were that the liberty of the press, trial 
by jury, freedom of speech, the right of the people to assemble, con- 
sult, and "to instruct their representatives," were not guaranteed; 
and in general, that the amendments submitted " fall short of afford- 
ing security to personal rights." (Senate Journal, December 12, 1789; 
MS., Va. St. Lib.) 

4 Annals, 1st Cong., 1st Sess., 444; and see entire debate. The 
amendments were offered as a measure of prudence to mollify the dis- 
affected. (Rives, iii, 38-39.) 

5 The House agreed to seventeen amendments. But the Senate 
reduced these to twelve, which were submitted to the States. The 
first of these provided for an increase of the representation in the 
House; the second provided that no law "varying" the salaries of 
Senators or Representatives "shall take effect until an election of 
Representatives shall have intervened." (Annals, 1st Cong., 1st 
Sess., Appendix to ii, 2033.) The States ratified only the last ten. 



A VIRGINIA NATIONALIST 59 

Randolph in Richmond wrote that the amend- 
ments were "much approved by the strong federal- 
ists . . . being considered as an anodyne to the dis- 
contented. Some others . . . expect to hear, . . . that 
a real amelioration of the Constitution was not so 
much intended, as a soporific draught to the rest- 
less. I believe, indeed," declared Randolph, "that 
nothing — nay, not even the abolishment of direct 
taxation — would satisfy those who are most clam- 
orous." l 

The amendments were used by many, who changed 
from advocates to opponents of broad National pow- 
ers, as a pretext for reversed views and conduct; but 
such as were actually adopted were not a sufficient 
justification for their action. 2 

The great question, however, with which the First 
Congress had to deal, was the vexed and vital prob- 
lem of finance. It was the heart of the whole consti- 
tutional movement. 3 Without a solution of it the 
National Government was, at best, a doubtful exper- 
iment. The public debt was a chaos of variegated 
obligations, including the foreign and domestic debts 
contracted by the Confederation, the debts of the 
various States, the heavy accumulation of interest on 
all. 4 Public and private credit, which had risen when 

(For good condensed treatment of the subject see Hildreth, iv, 112- 
24.) Thus the Tenth Amendment, as ratified, was the twelfth as sub- 
mitted and is sometimes referred to by the latter number in the doc- 
uments and correspondence of 1790-91, as in Jefferson's "Opinion on 
the Constitutionality of the Bank of the United States." (See infra.) 
New York, Virginia, Maryland, South Carolina, North Carolina, and 
Rhode Island accepted the twelve amendments as proposed. The 
other States rejected one or both of the first two amendments. 

1 Randolph to Madison, June 30, 1789; Conway, 126. 

s See Beard: Econ. 0. J. D., 76. 3 lb., 86. 4 lb., 132-33. 



60 JOHN MARSHALL 

the Constitution finally became an accomplished 
fact, was now declining with capital's frail timidity 
of the uncertain. 

In his " First Report on the Public Credit," Ham- 
ilton showed the way out of this maddening jungle. 
Pay the foreign debt, said Hamilton, assume as a 
National obligation the debts of the States and 
fund them, together with those of the Confederation. 
All had been contracted for a common purpose in a 
common cause; all were "the price of liberty." Let 
the owners of certificates, both State and Conti- 
nental, be paid in full with arrears of interest, with- 
out discrimination between original holders and 
those who had purchased from them. And let this 
be done by exchanging for the old certificates those 
of the new National Government bearing interest 
and transferable. These latter then would pass as 
specie; 1 the country would be supplied with a great 
volume of sound money, so badly needed, 2 and the 
debt be in the process of extinguishment. 3 

Hamilton's entire financial system was assailed 
with fury both in Congress and among the people. 
The funding plan, said its opponents, was a stock- 
jobbing scheme, the bank a speculator's contrivance, 
the National Assumption of State debts a dishonest 

1 Marshall, ii, 192. 

2 Money was exceedingly scarce. Even Washington had to borrow 
to travel to New York for his inauguration , and Patrick Henry could 
not attend the Federal Constitutional Convention for want of cash. 
(Conway, 132.) 

3 "First Report on the Public Credit"; Works; Lodge, ii, 227 et 
seq. The above analysis, while not technically precise, is sufficiently 
accurate to give a rough idea of Hamilton's plan. (See Marshall's 
analysis; Marshall, ii, 178-80.) 



A VIRGINIA NATIONALIST 61 

trick. The whole was a plot designed to array the 
moneyed interests in support of the National Gov- 
ernment. 1 Assumption of State debts was a device 
to increase the National power and influence and to 
lessen still more the strength and importance of the 
States. 2 The speculators, who had bought the de- 
preciated certificates of the needy, would be enriched 
from the substance of the whole people. 

Without avail had Hamilton answered every ob- 
jection in advance; the careful explanations in Con- 
gress of his financial measures went for naught; the 
materials for popular agitation against the National 
Government were too precious to be neglected by its 
foes. 3 "The first regular and systematic opposition 

1 This, indeed, was a portion of Hamilton's plan and he succeeded 
in it as he did in other parts of his broad purpose to combine as much 
strength as possible in support of the National Government. "The 
northern states and the commercial and monied people are zealously 
attached to . . . the new government." (Wolcott to his father, Feb. 
12, 1791;Gibbs, i, 62.) 

2 This was emphatically true. From the National point of view it 
was the best feature of Hamilton's plan. 

3 In his old age, John Adams, Hamilton's most venomous and unfor- 
giving enemy, while unsparing in his personal abuse, paid high tribute 
to the wisdom and necessity of Hamilton's financial statesmanship. 
"I know not," writes Adams, "how Hamilton could have done other- 
wise." (Adams to Rush, Aug. 23, 1805; Old Family Letters, 75.) "The 
sudden rise of public securities, after the establishment of the fund- 
ing system was no misfortune to the Public but an advantage. The 
necessity of that system arose from the inconsistency of the People 
in contracting debts and then refusing to pay them." (Same to same, 
Jan. 25, 1806; ib., 93.) 

Fisher Ames thus states the different interests of the sections: "The 
funding system, they [Southern members of Congress] say, is in favor 
of the moneyed interest — oppressive to the land; that is, favorable to 
us [Northern people], hard on them. They pay tribute, they say, and 
the middle and eastern people . . . receive it. And here is the burden 
of the song, almost all the little [certificates of State or Continental 
debts] that they had and which cost them twenty shillings, for sup* 



62 JOHN MARSHALL 

to the principles on which the affairs of the union 
were administered," writes Marshall, "originated in 
the measures which were founded on it [the " First 
Report on the Public Credit"]." x 

The Assumption of State debts was the strategic 
point of attack, especially for the Virginia politicians; 
and upon Assumption, therefore, they wisely con- 
centrated their forces. Nor were they without 
plausible ground of opposition; for Virginia, having 
given as much to the common cause as any State 
and more than most of her sisters, and having suf- 
fered greatly, had by the sale of her public lands 
paid off more of her debt than had any of the rest 
of them. 

It seemed, therefore, unjust to Virginians to put 
their State on a parity with those Commonwealths 
who had been less prompt. On the other hand, the 
certificates of debt, State and Continental, had ac- 
cumulated in the North and East; 2 and these sections 
were determined that the debt should be assumed by 
the Nation. 3 So the debate in Congress was heated 
and prolonged, the decision doubtful. On various 

plies or services, has been bought up, at a low rate, and now they pay 
more tax towards the interest than they received for the paper. 
This tribute, they say, is aggravating." (Ames to Minot, Nov. 30, 
1791 ; Works; Ames, i, 104.) 

1 Marshall, ii, 181. The attack on Hamilton's financial plan and 
especially on Assumption was the beginning of the definite organ- 
ization of the Republican Party. (Washington's Diary: Lossing, 
160.) 

2 Gore to King, July 25, 1790; King, i, 392; and see McMaster, ii, 
22. 

3 At one time, when it appeared that Assumption was defeated, 
Sedgwick of Massachusetts intimated that his section might secede. 
(Annals, 1st Cong., April 12, 1790, pp. 1577-78; and see Rives, iii, 
90 et seq.) 



A VIRGINIA NATIONALIST 6S 

amendments, sometimes one side and sometimes 
the other prevailed, often by a single vote. 1 

At the same time the question of the permanent 
location of the National Capital arose. 2 On these 
two subjects Congress was deadlocked. Both were 
disposed of finally by the famous deal between Jef- 
ferson and Hamilton, by which the latter agreed 
to get enough votes to establish the Capital on the 
Potomac and the former enough votes to pass the 
Assumption Bill. 

Washington had made Jefferson his Secretary of 
State purely on merit. For similar reasons of effi- 
ciency Hamilton had been appointed Secretary of the 
Treasury, after Robert Morris, Washington's first 
choice, had declined that office. 

At Jefferson's dinner table, the two Secretaries 
discussed the predicament and made the bargain. 
Thereupon, Jefferson, with all the zeal of his ardent 
temperament, threw himself into the contest to pass 
Hamilton's financial measure; and not only secured 
the necessary votes to make Assumption a law, but 
wrote letters broadcast in support of it. 

"Congress has been long embarrassed," he ad- 
vised Monroe, "by two of the most irritating ques- 
tions that ever can be raised, . . . the funding the 
public debt and . . . the fixing on a more central 
residence. . . . Unless they can be reconciled by 

1 Marshall's statement of the debate is the best and fairest brief 
account of this historic conflict. (See Marshall, ii, 181-90. See en- 
tire debate in Annals, 1st Cong., i, ii, under caption "Public Debt.") 

2 "This despicable grog-shop contest, whether the taverns of New 
York or Philadelphia shall get the custom of Congress, keeps us in 
discord and covers us all with disgrace." (Ames to Dwight, June 11, 
1790; Works: Ames, i, 80.) 



64 JOHN MARSHALL 

some plan of compromise, there will be no funding 
bill agreed to, our credit . . . will burst and vanish 
and the states separate to take care every one of 
itself." Jefferson outlines the bargain for fixing the 
Capital and assuming the debts, and concludes: 
"If this plan of compromise does not take place, 
I fear one infinitely worse." * To John Harvie he 
writes: "With respect to Virginia the measure is 
. . . divested of . . . injustice." 2 

Jefferson delivered three Southern votes to pass 
the bill for Assumption of the State debts, and 
Hamilton got enough Northern votes to locate the 
National Capital permanently where it now stands. 3 
Thus this vital part of Hamilton's comprehensive 
financial plan was squeezed through Congress by 
only two votes. 4 But Virginia was not appeased and 
remained the center of the opposition. 5 

Business at once improved. "The sudden increase 
of monied capital," writes Marshall, "invigorated 
commerce, and gave a new stimulus to agriculture." 6 

1 Jefferson to Monroe, June 20, 1790; Works: Ford, vi, 78-80; and 
see ib., 76; to Gilmer, June 27, ib., 83; to Rutledge, July 4, ib., 87-88; 
to Harvie, July 25, ib., 108. 

2 Ib. ; and see also Jefferson to Eppes, July 25, ib., 106; to Randolph, 
March 28, ib., 37; to same, April 18, ib., 47; to Lee, April 26, ib., 53; 
to Mason, June 13, ib., 75; to Randolph, June 20, ib., 76-77; to 
Monroe, June 20, ib., 79; to Dumas, June 23, ib., 82; to Rutledge, 
July 4, ib., 87-88; to Dumas, July 13, ib., 96. Compare these letters 
with Jefferson's statement, February, 1793; ib., vii, 224-26; and with 
the " Anas," ib., i, 171-78. Jefferson then declared that "I was really 
a stranger to the whole subject." (Ib., 176.) 

3 Jefferson's statement; Works: Ford, vii, 224-26, and i, 175-77. 

4 Gibbs, i, 32; and see Marshall, ii, 190-91. 

5 Henry, ii, 453. But Marshall says that more votes would have 
changed had that been necessary to consummate the bargain. (See 
Marshall, ii, footnote to 191.) 

6 lb., 192. 



A VIRGINIA NATIONALIST 65 

But the "immense wealth which individuals ac- 
quired" by the instantaneous rise in the value of the 
certificates of debt caused popular jealousy and dis- 
content. The debt was looked upon, not as the fund- 
ing of obligations incurred in our War for Independ- 
ence, but as a scheme newly hatched to strengthen 
the National Government by "the creation of a 
monied interest . . . subservient to its will." 1 

The Virginia Legislature, of which Marshall was 
now the foremost Nationalist member, convened 
soon after Assumption had become a National law. 
A smashing resolution, drawn by Henry, 2 was pro- 
posed, asserting that Assumption "is repugnant to 
the constitution of the United States, as it goes 
to the exercise of a power not expressly granted 
to the general government." 3 Marshall was active 
among and, indeed, led those who resisted to the 
uttermost the attack upon this thoroughly National 
measure of the National Government. 

Knowing that they were outnumbered in the 
Legislature and that the people were against As- 
sumption, Marshall and his fellow Nationalists in 
the House of Delegates employed the expedient of 
compromise. They proposed to amend Llenry's res- 
olution by stating that Assumption would place on 
Virginia a "heavy debt . . . which never can be ex- 
tinguished" so long as the debt of any other State 
remained unpaid; that it was "inconsistent with 
justice"; that it would "alienate the affections of 
good citizens of this Commonwealth from the gov- 

1 Marshall, ii, 191-92. 2 Henry, ii, 453-55. 

3 Journal, H.D. (1790), 35. 



66 JOHN MARSHALL 

erement of the United States . . . and finally tend 
to produce measures extremely unfavorable to the 
interests of the Union." 1 

Savage enough for any one, it would seem, was this 
amendment of the Nationalists in the Virginia 
Legislature; but its fangs were not sufficiently poi- 
sonous to suit the opposition. It lacked, particularly, 
the supreme virtue of asserting the law's unconstitu- 
tionality. So the Virginia Anti-Nationalists rejected 
it by a majority of 41 votes out of a total of 135. 

Marshall and his determined band of National- 
ists labored hard to retrieve this crushing defeat. 
On Henry's original resolution, they slightly in- 
creased their strength, but were again beaten by a 
majority of 23 out of 127 voting. 2 

Finally, the triumphant opposition reported a 
protest and remonstrance to Congress. This brilliant 
Anti-Nationalist State paper — the Magna Charta 
of States' Rights — sounded the first formal call to 
arms for the doctrine that all powers not expressly 
given in the Constitution were reserved to the States. 
It also impeached the Assumption Act as an effort 
"to erect and concentrate and perpetuate a large 
monied interest in opposition to the landed inter- 
ests," which would prostrate "agriculture at the 
feet of commerce" or result in a "change in the 
present form of Federal Government, fatal to the 
existence of American liberty." 3 

But the unconstitutionality of Assumption was 
the main objection. The memorial declared that 
"during the whole discussion of the federal consti- 
1 Journal, H.D. (1790), 35. l lb. s /&., 80-81. 



A VIRGINIA NATIONALIST 67 

tution by the convention of Virginia, your memorial- 
ists were taught to believe 'that every power not 
expressly granted was retained' . . . and upon this 
positive condition" the Constitution had been 
adopted. But where could anything be found in the 
Constitution "authorizing Congress to express terms 
or to assume the debts of the states?" Nowhere! 
Therefore, Congress had no such power. 

"As the guardians, then, of the rights and inter- 
ests of their constituents; as sentinels placed by them 
over the ministers of the Federal Government, to 
shield it from their encroachments," the Anti-Na- 
tionalists in the Virginia Legislature sounded the 
alarm. 1 It was of this jealous temper of the States 
that Ames so accurately wrote a year later: "The 
[National] government is too far off to gain the affec- 
tions of the people. . . . Instead of feeling as a Na- 
tion, a State is our country. We look with indiffer- 
ence, often with hatred, fear, and aversion, to the 
other states." 2 

Marshall and his fellow Nationalists strove ear- 
nestly to extract from the memorial as much venom 
as possible, but were able to get only three or four 
lines left out; 3 and the report was adopted practi- 
cally as originally drafted. 4 Thus Marshall was in 

1 Journal, H.D. (1790), 80-81; and see Am. St. Prs., Finance, i, 90- 
91. The economic distinction is here clearly drawn. Jefferson, who 
later made this a chief part of his attack, had not yet raised the point. 

2 Ames to Minot, Feb. 16, 1792; Works; Ames, i, 113. 

3 This was the sentence which declared that Hamilton's reasoning 
would result in "fictitious wealth through a paper medium," referring 
to his plan for making the transferable certificates of the National 
debt serve as currency. 

4 Journal, H.D. (1790), 141. 



68 JOHN MARSHALL 

the first skirmish, after the National Government 
had been established, of that constitutional en- 
gagement in which, ultimately, Nationalism was to 
be challenged on the field of battle. Sumter and 
Appomattox were just below the horizon. 

The remainder of Hamilton's financial plan was 
speedily placed upon the statute books of the Re- 
public, though not without determined resistance 
which, more and more, took on a grim and ugly 
aspect both in Congress and throughout the country. 

When Henry's resolution, on which the Virginia 
remonstrance was based, reached Hamilton, he in- 
stantly saw its logical result. It was, he thought, the 
major premise of the syllogism of National disinte- 
gration. "This," exclaimed Hamilton, of the Virginia 
resolution, "is the first symptom of a spirit which 
must either be killed or it will kill the Constitution 
of the United States." 1 

1 Hamilton to Jay, Nov. 13, 1790; Works: Lodge, ix, 473-74. 
Virginia was becoming very hostile to the new Government. First, 
there was a report that Congress was about to emancipate the slaves. 
Then came the news of the Assumption of the State debts, with the 
presence in Virginia of speculators from other States buying up State 
securities; and this added gall to the bitter cup which Virginians felt 
the National Government was forcing them to drink. Finally the 
tidings that the Senate had defeated the motion for public sessions 
inflamed the public mind still more. (Stuart to Washington, June 2, 
1790; Writings: Ford, xi, footnote to 482.) 

Even close friends of Washington deeply deplored a " spirit so sub- 
versive of the true principles of the constitution. ... If Mr. Henry has 
sufficient boldness to aim the blow at its [Constitution's] existence, 
which he has threatened, I think he can never meet with a more 
favorable opportunity if the assumption should take place." (Ih.) 

Washington replied that Stuart's letter pained him. "The public 
mind in Virginia . . . seems to be more irritable, sour, and discontented 
than ... it is in any other State in the Union except Massachusetts." 
(Washington to Stuart, June 15, 1790; ib., 481-82.) 

Marshall's father most inaccurately reported to Washington that 



A VIRGINIA NATIONALIST 69 

The Anti-Nationalist memorial of the Legislature 
of Virginia accurately expressed the sentiment of the 
State. John Taylor of Caroline two years later, in 
pamphlets of marked ability, attacked the Adminis- 
tration's entire financial system and its management. 
While he exhaustively analyzed its economic fea- 
tures, yet he traced all its supposed evils to the Na- 
tionalist idea. The purpose and result of Hamilton's 
whole plan and of the manner of its execution was, 
declared Taylor, to "Swallow up . . . the once sove- 
reign . . . states. . . . Hence all assumptions and 
. . . the enormous loans." Thus "the state govern- 
ments will become only speculative commonwealths 
to be read for amusement, like Harrington's Oceana 
or Moore's Utopia." l 

The fight apparently over, Marshall declined to 
become a candidate for the Legislature in the follow- 
ing year. The Administration's financial plan was 
now enacted into law and the vital part of the Na- 
tional machinery thus set up and in motion. The 
country was responding with a degree of prosperity 
hitherto unknown, and, for the time, all seemed 
secure. 2 So Marshall did not again consent to serve 

Kentucky favored the measures of the Administration; and the Presi- 
dent, thanking him for the welcome news, asked the elder Marshall 
for "any information of a public or private nature . . . from your 
district." (Washington to Thomas Marshall, Feb., 1791; Washing- 
ton's Letter Book, MS., Lib. Cong.) Kentucky was at that time in 
strong opposition and this continued to grow. 

1 Taylor's "An Enquiry, etc.," as quoted in Beard: Econ. 0. J. D., 
209. {lb., chap, vii.) Taylor's pamphlet was revised by Pendleton 
and then sent to Madison before publication. (Monroe to Madison, 
May 18, 1793; Monroe's Writings: Hamilton, i, 254.) Taylor wanted 
"banks . . . demolished " and bankers "excluded from public councils." 
(Beard: Econ. 0. J. D., 209.) 

2 Marshall, ii, 192. 



70 JOHN MARSHALL 

in the House of Delegates until 1795. But the years 
between these periods of his public life brought forth 
events which were determinative of the Nation's 
future. Upon the questions growing out of them, 
John Marshall was one of the ever-decreasing Vir- 
ginia minority which stanchly upheld the policies 
of the National Government. 

Virginia's declaration of the unconstitutionality of 
the Assumption Act had now thundered in Jeffer- 
son's ears. He himself was instrumental in the enact- 
ment of this law and its unconstitutionality never 
occurred to him 1 until Virginia spoke. But, faith- 
ful to the people's voice, 2 Jefferson was already pub- 
licly opposing, through the timid but resourceful 
Madison 3 and the fearless and aggressive 4 Giles, 
the Nationalist statesmanship of Hamilton. 5 

1 In Jefferson's letters, already cited, not the faintest suggestion 
appears that he thought the law unconstitutional. Not until Patrick 
Henry's resolution, and the address of the Virginia Legislature to 
Congress based thereon, made the point that Assumption was in viola- 
tion of this instrument, because the power to pass such a law was not 
expressly given in the Constitution, did Jefferson take his stand against 
implied powers. 

2 "Whether . . . right or wrong, abstractedly, more attention should 
be paid to the general opinion." (Jefferson to Mason, Feb. 4, 1791; 
Works: Ford, vi, 186.) 

3 Monroe had advised Madison of the hostility of Virginia to As- 
sumption and incidentally asked for an office for his own brother-in- 
law. (Monroe to Madison, July 2, 1790; Monroe's Writings: Hamil- 
ton, i, 208; and see Monroe to Jefferson, July 3, 1790; ib., 209.) 

4 Anderson, 21. 

5 Jefferson himself, a year after he helped pass the Assumption 
Act, had in a Cabinet paper fiercely attacked Hamilton's plan; and 
the latter answered in a formal statement to the President. These two 
documents are the ablest summaries of the opposing sides of this great 
controversy. (See Jefferson to President, May 23, 1792; Works: Ford, 
vi, 487-95; and Hamilton to Washington, Aug. 18, 1792; Works: 
Lodge, ii, 426-72.) 



A VIRGINIA NATIONALIST 71 

Thus it came about that when Washington asked 
his Cabinet's opinion upon the bill to incorporate the 
Bank of the United States, Jefferson promptly ex- 
pressed with all his power the constitutional theory 
of the Virginia Legislature. The opposition had 
reached the point when, if no other objection could 
be found to any measure of the National Govern- 
ment, its "unconstitutionality" was urged against 
it. "We hear, incessantly, from the old foes of the 
Constitution 'this is unconstitutional and that is,' 
and, indeed, what is not? I scarce know a point 
which has not produced this cry, not excepting a 
motion for adjourning." 1 Jefferson now proceeded 
"to produce this cry" against the Bank Bill. 

Hamilton's plan, said Jefferson, violated the Con- 
stitution. "To take a single step beyond the 
boundaries thus specially drawn around the powers 
of Congress [the Twelfth Amendment] 2 is to take 
possession of a boundless field of power, no longer 
susceptible of any definition." Even if the bank were 
"convenient" to carry out any power specifically 
granted in the Constitution, yet it was not "neces- 
sary," argued Jefferson; all powers expressly given 
could be exercised without the bank. It was only in- 
dispensable powers that the Constitution permitted 
to be implied from those definitely bestowed on 
Congress — "convenience is not necessity." 3 

1 Ames to Minot, March 8, 1792; Works: Ames, i, 114. 

2 Tenth Amendment, as ratified. 

3 "Opinion on the Constitutionality of a National Bank of the 
United States"; Works: Ford, vi, 198; and see Madison's argu- 
ment against the constitutionality of the Bank Act in Annals, 1st 
Cong., Feb. 2, 1791, pp. 1944-52; Feb. 8, 2008-12; also, Writings: Hunt, 



72 JOHN MARSHALL 

Hamilton answered with his argument for the 
doctrine of implied powers. 1 Banks, said he, are 
products of civilized life — all enlightened commer- 
cial nations have them. He showed the benefits 
and utility of banks; answered all the objections 
to these financial agencies; and then examined the 
disputed constitutionality of the bill for the incor- 
poration of the Bank of the United States. 

All the powers of the National Government were 
not set down in words in the Constitution and could 
not be. For instance, there are the "resulting 
powers," as over conquered territory. Nobody could 
deny the existence of such powers — yet they were 
not granted by the language of the fundamental law. 
As to Jefferson's argument based on the word "nec- 
essary," his contention meant, said Hamilton, that 
"no means are to be considered necessary without 
which the power would be nugatory" — which was 
absurd. Jefferson's reasoning would require that an 
implied power should be "absolutely or indispen- 
sably necessary." 

But this was not the ordinary meaning of the 
word and it was by this usual and customary under- 
standing of terms that the Constitution must be 
interpreted. If Jefferson was right, Congress could 
act only in "a case of extreme necessity." Such a 
construction of the Constitution would prevent 

vi, 19-42. This argument best shows Madison's sudden and radical 
change from an extreme Nationalist to an advocate of the most re- 
stricted National powers. 

1 Hamilton's "Opinion as to the Constitutionality of the Bank 
of the United States"; Works: Lodge, iii, 445-93. Adams took the 
same view. (See Adams to Rush, Dec. 27, 1810; Old Family Let- 
ters, 272.) 



A VIRGINIA NATIONALIST 73 

the National Government even from erecting light- 
houses, piers, and other conveniences of commerce 
which could be carried on without them. These 
illustrations revealed the paralysis of government 
concealed in Jefferson's philosophy. 

The true test of implied powers, Hamilton showed, 
was the "natural relation [of means] to the . . . law- 
ful ends of the government." Collection of taxes, 
foreign and interstate trade, were, admittedly, such 
ends. The National power to "regulate" these is 
"sovereign" ; and therefore "to employ all the means 
which will relate to their regulation to the best and 
greatest advantage" is permissible. 

"This general principle is inherent in the very 
definition of government," declared he, "and essen- 
tial to every step of the progress to be made by that 
of the United States, namely: That every power 
vested in a government is in its nature sovereign and 
included by force of the term, a right to employ all 
the means requisite and fairly applicable to the 
attainment of the ends of such power, and which are 
not precluded by restrictions and exceptions speci- 
fied in the Constitution or not immoral, or not con- 
trary to the essential ends of political society. . . . 

"The powers of the Federal Government, as to 
its objects are sovereign"; the National Constitu- 
tion, National laws, and treaties are expressly 
declared to be "the supreme law of the land." 
And he added, sarcastically: "The power which 
can create the supreme law of the land in any case 
is doubtless sovereign as to such case." But, said 
Hamilton, "it is unquestionably incident to sove- 



74 JOHN MARSHALL 

reign power to erect corporations, and consequently 
to that of the United States, in relation to the ob- 
jects intrusted to the management of the govern- 
ment." 

And, finally: "The powers contained in a consti- 
tution of government . . . ought to be construed 
liberally in advancement of the public good. . . . The 
means by which natural exigencies are to be provided 
for, national inconveniences obviated, national pros- 
perity promoted are of such infinite variety, extent, 
and complexity, that there must of necessity be 
great latitude of discretion in the selection and ap- 
plication of those means." x 

So were stated the opposing principles of liberal 
and narrow interpretation of the Constitution, about 
which were gathering those political parties that, 
says Marshall, "in their long and dubious conflict 
. . . have shaken the United States to their centre." 2 
The latter of these parties, under the name "Re- 
publican," was then being shaped into a compact 
organization. Its strength was increasing. The ob- 
ject of Republican attack was the National Gov- 
ernment; that of Republican praise and affection 
was the sovereignty of the States. 

"The hatred of the Jacobites towards the house 
of Hanover was never more deadly than that . . . 
borne by many of the partisans of State power to- 
wards the government of the United States," testi- 

1 "Opinion as to the Constitutionality of the Bank of the United 
States"; Works: Lodge, iii, 445-93. Washington was sorely perplexed 
by the controversy and was on the point of vetoing the Bank Bill. 
(See Rives, iii, 170-71.) 

2 Marshall, ii, 206-07. 



A VIRGINIA NATIONALIST 75 

fies Ames. 1 In the Republican view the basis of the 
two parties was faith as against disbelief in the abil- 
ity of the people to govern themselves; the former 
favored the moneyed interests, the latter appealed 
to the masses. 2 Such was the popular doctrine 
preached by the opponents of the National Gov- 
ernment; but all economic objections centered in a 
common assault on Nationalism. 

Thus a clear dividing line was drawn separating 
the people into two great political divisions; and 
political parties, in the present-day sense of definite 
organizations upon fundamental and popularly rec- 
ognized principles, began to emerge. Henceforth 
the terms "Federalist" and "Republican" mean 
opposing party groups, the one standing for the 
National and the other for the provincial idea. The 
various issues that arose were referred to the 
one or the other of these hostile conceptions of 
government. 

In this rise of political parties the philosophy of 
the Constitution was negatived ; for our fundamental 
law, unlike those of other modern democracies, was 
built on the non-party theory and did not con- 
template party government. Its architects did not 
foresee parties. Indeed, for several years after the 
Constitution was adopted, the term "party" was 
used as an expression of reproach. The correspond- 
ence of the period teems with illustrations of this 
important fact. 

For a considerable time most of the leading men 

1 Ames to Dwight, Jan. 23, 1792; Works: Ames, i, 110-11. 

1 "A Candid State of Parties " — National Gazette, Sept. 26, 1792, 



76 JOHN MARSHALL 

of the period looked with dread upon the growing 
idea of political parties; and the favorite rebuke to 
opponents was to accuse them of being a "party" 
or a "faction," those designations being used inter- 
changeably. The "Farewell Address" is a solemn 
warning against political parties * almost as much 
as against foreign alliances. 

1 "I was no party man myself and the first wish of my heart was, 
if parties did exist, to reconcile them." (Washington to Jefferson, 
July 6, 1796; Writings: Ford, xiii, 230.) 



CHAPTER IH 

LEADING THE VIRGINIA FEDERALISTS 

I think nothing better could be done than to make him [Marshall] a judge. 
(Jefferson to Madison, June 29, 1792.) 

To doubt the holiness of the French cause was the certain road to odium and 
proscription. (Alexander Graydon.) 

The trouble and perplexities have worn away my mind. (Washington.) 

In Richmond, Marshall was growing ever stronger 
in his belief in Nationalism. Hamilton's immortal 
plea for a vital interpretation of the fundamental 
law of the Nation and his demonstration of the 
constitutionality of extensive implied powers was 
a clear, compact statement of what Marshall him- 
self had been thinking. The time was coming when 
he would announce it in language still more lucid, 
expressive of a reasoning even more convincing. 
Upon Hamilton's constitutional doctrine John Mar- 
shall was to place the seal of finality. 1 

But Marshall did not delay until that great hour 
to declare his Nationalist opinions. Not only did he 
fight for them in the House of Delegates; but in his 
club at Farmicola's Tavern, on the street corners, 
riding the circuit, he argued for the constitutional- 
ity and wisdom of those measures of Washington's 

1 Compare Hamilton's "Opinion as to the Constitutionality of the 
Bank of the United States" with Marshall's opinion in McCulloch 
vs. Maryland. The student of Marshall cannot devote too much 
attention to Hamilton's great state papers, from the " First Report 
on the Public Credit" to "Camillus." It is interesting that Hamilton 
produced all these within five years, notwithstanding the fact that 
this was the busiest and most crowded period of his life. 



78 JOHN MARSHALL 

Administration which strengthened and broadened 
the powers of the National Government. 1 

Although he spoke his mind, in and out of season, 
for a cause increasingly unpopular, Marshall, as yet, 
lost little favor with the people. At a time when 
political controversy severed friendship and inter- 
rupted social relations, 2 his personality still held 
sway over his associates regardless of their political 
convictions. Even Mason, the ultra-radical foe of 
broad National powers, wrote, at this heated junc- 
ture, that Marshall "is an intimate friend of mine." 3 

His winning frankness, easy manner, and warm- 
heartedness saved him from that dislike which his 
bold views otherwise would have created. "Inde- 
pendent principles, talents, and integrity are de- 
nounced [in Virginia] as badges of aristocracy; but 
if you add to these good manners and a decent 
appearance, his political death is decreed without 
the benefit of a hearing," testifies Francis Corbin. 4 

"Independent principles, talents, and integrity" 
Marshall possessed in fullest measure, as all ad- 
mitted; but his manners were far from those which 
men like the modish Corbin called "good," and his 
appearance would not have passed muster under the 
critical eye of that fastidious and disgruntled young 
Federalist. We shall soon hear Jefferson denouncing 
Marshall's deportment as the artifice of a cunning 

1 Binney, in Dillon, iii, 301-02. 

2 La Rochefoucauld, iii, 73. For a man even "to be passive . . . 
is a satisfactory proof that he is on the wrong side." (Monroe to 
Jefferson, July 17, 1792; Monroe's Writings: Hamilton, i, 238.) 

3 George Mason to John Mason, July 12, 1791 ; Rowland, ii, 338. 
* Corbin to Hamilton, March 17, 1793; as quoted in Beard: Econ, 

0. J. D., 226. 



LEADING THE VIRGINIA FEDERALISTS 79 

and hypocritical craft. As yet, however, Jefferson 
saw in Marshall only an extremely popular young 
man who was fast becoming the most effective sup- 
porter in Virginia of the National Government. 

In the year of the Bank Act, Jefferson and Madi- 
son went on their eventful "vacation," swinging up 
the Hudson and through New England. During this 
journey Jefferson drew around Madison "the magic 
circle" of his compelling charm and won entirely to 
the extreme Republican cause 1 the invaluable aid 
of that superb intellect. In agreement as to common 
warfare upon the Nationalist measures of the Ad- 
ministration, 2 the two undoubtedly talked over the 
Virginia Federalists. 3 

Marshall's repeated successes at the polls with a 
constituency hostile to the young lawyer's views par- 
ticularly impressed them. Might not Marshall be- 
come a candidate for Congress? If elected, here would 
be a skillful, dauntless, and captivating supporter of 
all Nationalist measures in the House of Representa- 
tives. What should be done to avert this misfortune? 

1 "Patrick Henry once said 'that he could forgive anything else 
in Mr. Jefferson, but his corrupting Mr. Madison.'" (Pickering to 
Marshall, Dec. 26, 1828, Pickering MSS., Mass. Hist. Soc.) "His 
[Madison's] placing himself under the pupilage of Mr. Jefferson and 
supporting his public deceptions, are sufficient to put him out of my 
book." (Pickering to Rose, March 22, 1808; ib.) 

2 Madison's course was irreconcilable with his earlier Nationalist 
stand. (See Beard: Econ. 0. J. D., 77; and see especially the remark- 
able and highly important letter of Hamilton to Carrington, May 26, 
1792; Works: Lodge, ix, 513-35, on Madison's change, Jefferson's con- 
duct, and the politics of the time.) Carrington was npw the brother- 
in-law of Marshall and his most intimate friend. Their houses in 
Richmond almost adjoined. (See infra, chap, v.) 

3 See brief but excellent account of this famous journey in Gay: 
Madison (American Statesmen Series), 184-85; and contra, Rives, iii, 
191. 



80 JOHN MARSHALL 

Jefferson's dexterous intellect devised the idea of 
getting rid of Marshall, politically, by depositing 
him on the innocuous heights of the State bench. 
Better, far better, to make Marshall a Virginia judge 
than to permit him to become a Virginia Representa- 
tive in Congress. So, upon his return, Jefferson 
wrote to Madison: — 

"I learn that he [Hamilton] has expressed the 
strongest desire that Marshall should come into 
Congress from Richmond, declaring that there is 
no man in Virginia whom he wishes so much to see 
there; and I am told that Marshall has expressed 
half a mind to come. Hence I conclude that Hamil- 
ton has plyed him well with flattery & sollicitation 
and I think nothing better could be done than to 
make him a judge." 1 

Hamilton's "plying" Marshall with "flattery & 
solicitation" occurred only in Jefferson's teeming, 
but abnormally suspicious, mind. Marshall was in 
Virginia all this time, as his Account Book proves, 
while Hamilton was in New York, and no letters 
seem to have passed between them. 2 But Jefferson's 
information that his fellow Secretary wished the 
Nationalist Richmond attorney in Congress was 
probably correct. Accounts of Marshall's striking 
ability and of his fearless zeal in support of the Ad- 
ministration's measures had undoubtedly reached 
Hamilton, perhaps through Washington himself; 
and so sturdy and capable a Federalist in Congress 

1 Jefferson to Madison, June 29, 1792; Works: Ford, vii, 129-30. 

2 No letters have been discovered from Hamilton to Marshall or 
from Marshall to Hamilton dated earlier than three years after Jef- 
ferson's letter to Madison. 



LEADING THE VIRGINIA FEDERALISTS 81 

from Virginia would have been of great strategic 
value. 

But Jefferson might have spared his pains to dis- 
pose of Marshall by cloistering him on the State 
bench. Nothing could have induced the busy lawyer 
to go to Congress at this period. It would have 
been fatal to his law practice x which he had built 
up until it was the largest in Richmond and upon 
the returns from which his increasing family de- 
pended for support. Six years later, Washington him- 
self labored with Marshall for four days before he 
could persuade him to stand for the National House, 
and Marshall then yielded to his adored leader only 
as a matter of duty, at one of the Nation's most 
critical hours, when war was on the horizon. 2 

The break-up of Washington's Cabinet was now 
approaching. Jefferson was keeping pace with the 
Anti-Nationalist sentiment of the masses — drilling 
his followers into a sternly ordered political force. 
"The discipline of the [Republican] party," wrote 
Ames, "is as severe as the Prussian." 3 Jefferson and 
Madison had secured an organ in the "National 
Gazette," 4 edited by Freneau, whom Jefferson em- 
ployed as translator in the State Department. 
Through this paper Jefferson attacked Hamilton 
without mercy. The spirited Secretary of the Treas- 

1 "The length of the last session has done me irreparable injury 
in my profession, as it has made an impression on the general opinion 
that two occupations are incompatible." (Monroe to Jefferson, June 
17, 1792; Monroe's Writings: Hamilton, i, 230.) 

2 See infra, chap. x. 

3 Ames to Dwight, Jan., 1793; Works: Ames, i, 126-27. 

4 Rives, iii, 192-94; and see McMaster, ii, 52-53; also Hamilton 
to Carrington, May 26, 1792; Works: Lodge, ix, 513-35. 



82 JOHN MARSHALL 

ury keenly resented the opposition of his Cabinet 
associate which was at once covert and open. 

In vain the President pathetically begged Jef- 
ferson for harmony and peace. 1 Jefferson responded 
with a bitter attack on Hamilton. "I was duped," 
said he, "by the Secretary of the Treasury and made 
a tool for forwarding his schemes, not then suffi- 
ciently understood by me." 2 To somewhat, but not 
much, better purpose did Washington ask Hamilton 
for "mutual forbearances." 3 Hamilton replied with 
spirit, yet pledged his honor that he would "not, 
directly or indirectly, say or do a thing that shall 
endanger a feud." 4 

The immense speculation, which had unavoidably 
grown out of the Assumption and Funding Acts, in- 
flamed popular resentment against the whole finan- 
cial statesmanship of the Federalists. 6 More ma- 
terial, this, for the hands of the artificer who was 
fashioning the Republican Party into a capacious 
vessel into which the people might pour all theif 
discontent, all their fears, all their woes and all their 

1 Washington to Jefferson, Aug. 23, 1792; Writings: Ford, xii, 
174-75. This letter is almost tearful in its pleading. 

2 Jefferson to Washington, Sept. 9, 1792; Works: Ford, vii, 137 
et seq. The quotation in the text refers to Jefferson's part in the deal 
fixing the site of the Capital and passing the Assumption Act. Com- 
pare with Jefferson's letters written at the time. (Supra, 64.) It is 
impossible that Jefferson was not fully advised; the whole country 
was aroused over Assumption, Congress debated it for weeks, it was 
the one subject of interest and conversation at the seat of government, 
and Jefferson himself so testifies in his correspondence. 

3 Washington to Hamilton, Aug. 26, 1792; Writings: Ford, xii, 
177-78. 

4 Hamilton to Washington, Sept 9, 1792; Works: Lodge, vii, 
306. 

6 See Marshall, ii, 191-92. 



LEADING THE VIRGINIA FEDERALISTS 83 

hopes. And Jefferson, with practical skill, used for 
that purpose whatever material he could find. 

Still more potter's earth was brought to Jefferson. 
The National Courts were at work. Creditors were 
securing judgments for debts long due them. In 
Virginia the debtors of British merchants, who for 
many years had been rendered immune from pay- 
ment, were brought to the bar of this "alien" tri- 
bunal. Popular feeling ran high. A resolution was 
introduced into the House of Delegates requesting 
the Virginia Senators and Representatives in Con- 
gress to "adopt such measures as will tend, not only 
to suspend all executions and the proceedings 
thereon, but prevent any future judgments to be 
given by the Federal Courts in favor of British cred- 
itors until" Great Britain surrendered the posts 
and runaway negroes. 1 Thus was the practical over- 
throw of the National Judiciary proposed. 2 

Nor was this all. A State had been haled before a 
National Court. 3 The Republicans saw in this the 
monster "consolidation." The Virginia Legislature 
passed a resolution instructing her Senators and 
Representatives to "unite their utmost and earliest 
exertions" to secure a constitutional amendment 
preventing a State from being sued "in any court of 

1 Journal, H.D. (Nov. 28, 1793), 101. 

2 lb. The Legislature instructed Virginia's Senators and Represen- 
tatives to endeavor to secure measures to "suspend the operation and 
completion" of the articles of the treaty of peace looking to the pay- 
ment of British debts until the posts and negroes should be given 
up. (/&., 124-25; also see Virginia Statutes at Large, New Series, 
i, 285.) Referring to this Ames wrote: "Thus, murder, at last, is 
out." (Ames to Dwight, May 6, 1794; Works: Ames, i, 143-44.) 

8 Chisholm vs. Georgia, 2 Dallas, 419. 



84 JOHN MARSHALL 

the United States." * The hostility to the National 
Bank took the form of a resolution against a director 
or stockholder of the Bank of the United States being 
a Senator or Representative in Congress. 2 But ap- 
parently this trod upon the toes of too many ambi- 
tious Virginians, for the word "stockholders" was 
stricken out. 3 

The slander that the Treasury Department had 
misused the public funds had been thoroughly an- 
swered; 4 but the Legislature of Virginia by a major- 
ity of 111 out of a total vote of 124, applauded her 
Senators and Representatives who had urged the 
inquiry. 5 Such was the developing temper of Re- 
publicanism as revealed by the emotionless pages 
of the public records; but these furnish scarcely a 
hint of the violence of public opinion. 

Jefferson was now becoming tigerish in his as- 
saults on the measures of the Administration. Many 

1 Journal, H.D. (1793), 92-99; also see Virginia Statutes at Large, 
New Series, i, 284. This was the origin of the Eleventh Amendment to 
the Constitution. The Legislature " Resolved, That a State cannot, 
under the Constitution of the United States, be made a defendant at the 
suit of any individual or individuals, and that the decision of the 
Supreme Federal Court, that a State may be placed in that situation, 
is incompatible with, and dangerous to the sovereignty and inde- 
pendence of the individual States, as the same tends to a general con- 
solidation of these confederated republics." Virginia Senators were 
"instructed" to make "their utmost exertions" to secure an amend- 
ment to the Constitution regarding suits against States. The Gover- 
nor was directed to send the Virginia resolution to all the other States. 
(Journal, H.D. (1793), 99.) 

2 lb., 125. 

3 lb.; also Statutes at Large, supra, 284. 

4 See Annals, 2d Cong., 900-63. 

8 Journal, H.D. (1793), 56-57. Of Giles's methods in this attack on 
Hamilton the elder Wolcott wrote that it was "such a piece of base- 
ness as would have disgraced the council of Pandemonium." (Wol- 
cott to his son, March 25, 1793; Gibbs, i, 91.) 



LEADING THE VIRGINIA FEDERALISTS 85 

members of Congress had been holders of certifi- 
cates which Assumption and Funding had made 
valuable. Most but not all of them had voted for 
every feature of Hamilton's financial plan. 1 Three 
or four were directors of the Bank, but no dis- 
honesty existed. 2 Heavy speculation went on in 
Philadelphia. 3 This, said Republicans, was the 
fruit which Hamilton's Nationalist financial scheme 
gathered from the people's industry to feed to 
"monocrats." 

"Here [Philadelphia]/ ' wrote Jefferson, "the un- 
monied farmer ... his cattle & corps [sic] are no 
more thought of than if they did not feed us. Script 
& stock are food & raiment here. . . . The credit & 
fate of the nation seem to hang on the desperate 
throws & plunges of gambling scoundrels." 4 But 
Jefferson comforted himself with the prophecy that 

1 Beard: Econ. 0. J. D., chap. vi. 

2 Professor Beard, after a careful treatment of this subject, con- 
cludes that "The charge of mere corruption must fall to the ground." 
{lb., 195.) 

3 " To the northward of Baltimore everybody . . . speculates, trades, 
and jobs in the stocks. The judge, the advocate, the physician and the 
minister of divine worship, are all, or almost all, more or less inter- 
ested in the sale of land, in the purchase of goods, in that of bills of 
exchange, and in lending money at two or three per cent." (La Roche- 
foucauld, iv, 474.) The French traveler was also impressed with the 
display of riches in the Capital. "The profusion of luxury of Phil- 
adelphia, on great days, at the tables of the wealthy, in their equipages 
and the dresses of their wives and daughters, are . . . extreme. I have 
seen balls on the President's birthday where the splendor of the rooms, 
and the variety and richness of the dresses did not suffer, in compar- 
ison with Europe." The extravagance extended to working-men who, 
on Sundays, spent money with amazing lavishness. Even negro ser- 
vants had balls; and negresses with wages of one dollar per week 
wore dresses costing sixty dollars. (lb., 107-09.) 

1 Jefferson to T. M. Randolph, March 16, 1792; Works: Ford, 
vi, 408. 



86 JOHN MARSHALL 

"this nefarious business" would finally "tumble its 
authors headlong from their heights." 1 

The National law taxing whiskey particularly 
aroused the wrath of the multitude. Here it was at 
last ! — a direct tax laid upon the universal drink of 
the people, as the razor-edged Pennsylvania resolu- 
tions declared. 2 Here it was, just as the patriotic 
foes of the abominable National Constitution had 
predicted when fighting the ratification of that " op- 
pressive" instrument. Here was the exciseman at 
every man's door, just as Henry and Mason and 
Grayson had foretold — and few were the doors in 
the back counties of the States behind which the 
owner's private still was not simmering. 3 And why 
was this tribute exacted? To provide funds re- 
quired by the corrupt Assumption and Funding 
laws, asserted the agitators. 

1 Jefferson to Short, May 18, 1792; Works: Ford, vi, 413; and see 
"A Citizen" in the National Gazette, May 3, 1792, for a typical Repub- 
lican indictment of Funding and Assumption. 

2 Gallatin's Writings: Adams, i, 3. 

3 Pennsylvania alone had five thousand distilleries. (Beard: 
Econ. 0. J. D., 250.) Whiskey was used as a circulating medium. 
(McMaster, ii, 29.) Every contemporary traveler tells of the numer- 
ous private stills in Pennyslvania and the South. Practically all 
farmers, especially in the back country, had their own apparatus for 
making whiskey or brandy. (See chap, vn, vol. I, of this work.) 

Nor was this industry confined to the lowly and the frontiersmen. 
Washington had a large distillery. (Washington to William Augus- 
tine Washington, Feb. 27, 1798; Writings: Ford, xiii, 444.) 

New England's rum, on the other hand, was supplied by big dis- 
tilleries; and these could include the tax in the price charged the con- 
sumer. Thus the people of Pennsylvania and the South felt the tax 
personally, while New Englanders were unconscious of it. Otherwise 
there doubtless would have been a New England "rum rebellion," 
as Shays's uprising and as New England's implied threat in the As- 
sumption fight would seem to prove. (See Beard: Econ. 0. J. D., 
250-51.) 



LEADING THE VIRGINIA FEDERALISTS 87 

Again it was the National Government that was 
to blame; in laying the whiskey tax it had invaded 
the rights of the States, hotly declared the Republi- 
cans. "All that powerful party," Marshall bears 
witness, "which attached itself to the local [State] 
rather than to the general [National] government . . . 
considered ... a tax by Congress on any domestic 
manufacture as the intrusion of a foreign power into 
their particular concerns which excited serious appre- 
hensions for state importance and for liberty." * The 
tariff did not affect most people, especially those in 
the back country, because they used few or no im- 
ported articles; but the whiskey tax did reach them, 
directly and personally. 2 

Should such a despotic law be obeyed? Never! It 
was oppressive! It was wicked! Above all, it was 
" unconstitutional " ! But what to do ! The agencies 
of the detested and detestable National Government 
were at work! To arms, then! That was the only 
thing left to outraged freemen about to be ravaged 
of their liberty! 3 Thus came the physical defiance 
of the law in Pennsylvania; Washington's third 
proclamation 4 demanding obedience to the National 
statutes after his earnest pleas 5 to the disaffected 
to observe the laws; the march of the troops ac- 
companied by Hamilton 6 against the insurgents; the 

1 Marshall, ii, 200. 2 lb., 238. 3 Graydon, 372. 

1 Sept. 25, 1794; Writings: Ford, xii, 467. 

6 Sept. 15, 1792; Richardson, i, 124; Aug. 7, 1794; Writings: Ford, 
xii, 445. 

6 Hamilton remained with the troops until the insurrection was 
suppressed and order fully established. (See Hamilton's letters to 
Washington, written from various points, during the expedition, from 
Oct. 25 to Nov. 19, 1794; Works: Lodge, vi, 451-60.) 



88 JOHN MARSHALL 

forcible suppression of this first armed assault on 
the laws of the United States in which men had been 
killed, houses burned, mails pillaged — all in the 
name of the Constitution, 1 which the Republicans 
now claimed as their peculiar property. 2 

Foremost in the fight for the whiskey insurgents 
were the democratic societies, which, as has been 
seen, were the offspring of the French Jacobin 
Clubs. Washington finally became certain that these 
organizations had inspired this uprising against 
National law and authority. While the Whiskey 
Rebellion was economic in its origin, yet it was sus- 
tained by the spirit which the French Revolution 
had kindled in the popular heart. Indeed, when the 
troops sent to put down the insurrection reached 
Harrisburg, they found the French flag flying over 
the courthouse. 3 

Marshall's old comrade in the Revolution, close 
personal friend, and business partner, 4 Henry Lee, 
was now Governor of Virginia. He stood militantly 
with Washington and it was due to Lee's efforts that 

1 Marshall, ii, 200, 235-38, 340-48; Gibbs, i, 144-55; and see Ham- 
ilton's Report to the President, Aug. 5, 1794; Works: Lodge, vi, 358- 
88. But see Gallatin's Writings: Adams, i, 2-12; Beard : Econ. 0. J. D., 
250-60. For extended account of the Whiskey Rebellion from the 
point of view of the insurgents, see Findley : History of the Insurrection, 
etc., and Breckenridge: History of the Western Insurrection. 

2 The claim now made by the Republicans that they were the only 
friends of the Constitution was a clever political turn. Also it is an 
amusing incident of our history. The Federalists were the creators of 
the Constitution; while the Republicans, generally speaking and 
with exceptions, had been ardent foes of its adoption. (See Beard: 
Econ. 0. J. D.) 

3 Gray don, 374. Jefferson's party was called Republican because 
of its championship of the French Republic. (Ambler, 63.) 

4 In the Fairfax purchase. (See infra, chap, v.) 



LEADING THE VIRGINIA FEDERALISTS 89 

the Virginia militia responded to help suppress the 
Whiskey Rebellion. He was made Commander-in- 
Chief of all the forces that actually took the field. 1 
To Lee, therefore, Washington wrote with unre- 
strained pen. 

"I consider," said the President, "this insurrec- 
tion as the first formidable fruit of the Democratic 
Societies . . . instituted by . . . artful and designing 
members [of Congress] ... to sow the seeds of jeal- 
ousy and distrust among the people of the govern- 
ment. ... I see, under a display of popular and 
fascinating guises, the most diabolical attempts to 
destroy . . . the government." 2 He declared: "That 
they have been the fomenters of the western disturb- 
ances admits of no doubt." 3 

Never was that emphatic man more decided than 
now; he was sure, he said, that, unless lawlessness 
were overcome, republican government was at an 
end, "and nothing but anarchy and confusion is to 
be expected hereafter." 4 If "the daring and factious 
spirit" is not crushed, "adieu to all government in 
this country, except mob and club government." 5 

Such were Washington's positive and settled 
opinions, and they were adopted and maintained 
by Marshall, his faithful supporter. 

And not only by argument and speech did Mar- 
shall uphold the measures of Washington's Adminis- 

1 See Hamilton's orders to General Lee; Works: Lodge, vi, 445-51; 
and see Washington to Lee, Oct. 20, 1794; Writings: Ford, xii, 478-80. 

2 Washington to Lee, Aug. 26, 1794; Writings: Ford, xii, 454-56. 

3 Washington to Jay, Nov. 1, 1794; ib., 486. 

4 Washington to Thruston, Aug. 10, 1794; ib., 452. 

6 Washington to Morgan, Oct. 8, 1794; ib., 470. The Virginia 
militia were under the Command of Major-General Daniel Morgan. 



90 JOHN MARSHALL 

tration. In 1793 he had been commissioned as Briga- 
dier-General of Militia, and when the President's 
requisition came for Virginia troops to enforce the 
National revenue law against those who were vio- 
lently resisting the execution of it, he was placed in 
command of one of the detachments to be raised for 
that purpose. 1 Although it is not established that 
his brigade was ordered to Pennsylvania, the proba- 
bilities are that it was and that Marshall, in com- 
mand of it, was on the scene of the first armed oppo- 
sition to the National Government. And it is certain 
that Marshall was busy and effective in the work of 
raising and properly equipping the troops for duty. 
He suggested practical plans for expediting the mus- 
ter and for economizing the expenditure of the public 
money, and his judgment was highly valued. 2 

All the ability, experience, and zeal at the disposal 
of the State were necessary, for the whiskey tax was 
only less disliked in Virginia than in Pennsylvania, 
and a portion of the Commonwealth was inclined 
to assist rather than to suppress the insurrection. 3 
Whether or not he was one of the military force that, 
on the ground, overawed the whiskey insurgents, 
it is positively established that Marshall was ready, 
in person, to help put down with arms all forcible 
opposition to the National laws and authority. 

Jefferson, now the recognized commander-in-chief 
of the new party, was, however, heartily with the 
popular outbreak. He had approved Washington's 

1 General Order, June 30, 1794; Cal. Va. St. Prs., vii, 202. 

2 Carrington to Lieutenant-Governor Wood, Sept. 1, 1794; ib., 287. 

3 Major-General Daniel Morgan to the Governor of Virginia, Sept. 
7, 1794; ib., 297. 



LEADING THE VIRGINIA FEDERALISTS 91 

first proclamations against the whiskey producers; x 
but, nevertheless, as the anger of the people grew, it 
found Jefferson responsive. "The excise law is an 
infernal one," he cried; the rebellion against it, 
nothing more than "riotous" at the worst. 2 

And Jefferson wielded his verbal cat-o '-nine-tails 
on Washington's order to put. the rebellion down 
by armed forces. 3 It was all "for the favorite pur- 
pose of strengthening government and increasing 
public debt." 4 Washington thought the Whiskey 
Rebellion treasonable; and Jefferson admitted that 
"there was ... a meeting to consult about a separa- 
tion" from the Union; but talking was not acting. 5 
Thus the very point was raised which Marshall 
enforced in the Burr trial twelve years later, when 
Jefferson took exactly opposite grounds. But to take 
the popular view now made for Republican solidar- 
ity and strength. Criticism is ever more profitable 
politics than building. 

All this had different effects on different public 
men. The Republican Party was ever growing 
stronger, and under Jefferson's skillful guidance, was 
fast becoming a seasoned political army. The senti- 
ment of the multitude against the National Govern- 
ment continued to rise. But instead of weakening 
John Marshall's Nationalist principles, this turbu- 
lent opposition strengthened and hardened them. So 
did other and larger events of that period which tu- 
multuously crowded fast upon one another's heels. 

1 Jefferson to Washington, Sept. 18, 1792; Works: Ford, vii, 153. 

2 Jefferson to Madison, Dec. 28, 1794; ib., viii, 157. s Ib. 

4 Jefferson to Monroe, May 26, 1795; ib., 177. 

5 Jefferson to Madison, Dec. 28, 1794; ib., 157. 



92 JOHN MARSHALL 

As we have seen, the horrors of the Reign of Terror 
in Paris did not chill the frenzied enthusiasm of the 
masses of Americans for France. "By a strange kind 
of reasoning," wrote Oliver Wolcott to his brother, 
"some suppose the liberties of America depend on 
the right of cutting throats in France." 1 

In the spring of 1793 France declared war against 
England. The popular heart in America was hot for 
France, the popular voice loud against England. The 
idea that the United States was an independent na- 
tion standing aloof from foreign quarrels did not enter 
the minds of the people. But it was Washington's one 
great conception. It was not to make the American 
people the tool of any foreign government that he 
had drawn his sword for their independence. It was 
to found a separate nation with dignity and rights 
equal to those of any other nation ; a nation friendly 
to all, and allied with none 2 — this was the supreme 
purpose for which he had fought, toiled, and suf- 
fered. And Washington believed that only on this 
broad highway could the American people travel 
to ultimate happiness and power. 3 He determined 
upon a policy of absolute impartiality. 

On the same day that the Minister of the new 
French Republic landed on American shores, Wash- 

1 Wolcott to Wolcott, Dec. 15, 1792; Gibbs, i, 85. 

2 Marshall, ii, 256; see Washington's "Farewell Address." 

3 John Adams claimed this as his particular idea. "Washington 
learned it from me . . . and practiced upon it." (Adams to Rush, 
July 7, 1805; Old Family Letters, 71.) 

" I trust that we shall have too just a sense of our own interest to 
originate any cause, that may involve us in it [the European war]." 
(Washington to Humphreys, March 23, 1793; Writings: Ford, xii, 
276.) 



LEADING THE VIRGINIA FEDERALISTS 93 

ington proclaimed Neutrality. 1 This action, which 
to-day all admit to have been wise and far-seeing 
statesmanship, then caused an outburst of popular 
resentment against Neutrality and the Administra- 
tion that had dared to take this impartial stand. For 
the first time Washington was openly abused by 
Americans. 2 

"A great majority of the American people deemed 
it criminal to remain unconcerned spectators of a 
conflict between their ancient enemy [Great Britain] 
and republican France," declares Marshall. The 
people, he writes, thought Great Britain was waging 
war "with the sole purpose of imposing a monarchi- 
cal government on the French people. The few who 
did not embrace these opinions, and they were cer- 
tainly very few, were held up as objects of public 
detestation; and were calumniated as the tools of 
Britain and the satellites of despotism." 3 

The National Government was ungrateful, cried 
the popular voice; it was aiding the tyrants of Eu- 
rope against a people struggling for freedom; it was 
cowardly, infamous, base. "Could any friend of his 
kind be neutral?" was the question on the popular 
tongue; of course not! unless, indeed, the miscreant 
who dared to be exclusively American was a mon- 
archist at heart. "To doubt the holiness of their 
[the French] cause was the certain road to odium 

1 Marshall, ii, 259; and see Rules of Neutrality, ib., note 13, p. 15. 
Washington's proclamation was drawn by Attorney-General Ran- 
dolph. (Conway, 202.) 

2 Marshall, ii, 259-60. "The publications in Freneau's and Bache's 
papers are outrages on common decency." (Washington to Lee, July 
21, 1793; Writings: Ford, xii, 310.) 

3 Marshall, ii, 256. 



94 JOHN MARSHALL 

and proscription," testifies an observer. 1 The Repub- 
lican press, following Paine's theory, attacked "all 
governments, including that of the United States, 
as naturally hostile to the liberty of the people," 
asserts Marshall. 2 Few were the friends of Neutrality 
outside of the trading and shipping interests. 3 

Jefferson, although still in Washington's Cabinet, 
spoke of "the pusillanimity of the proclamation" 4 
and of "the sneaking neutrality" it set up. 5 "In 
every effort made by the executive to maintain the 
neutrality of the United States," writes Marshall, 

1 Graydon, 382. 

2 Marshall, ii, 260. "A Freeman" in the General Advertiser of 
Philadelphia stated the most moderate opinion of those who opposed 
Neutrality. "France," said he, "is not only warring against the 
despotism of monarchy but the despotism of aristocracy and it would 
appear rather uncommon to see men [Washington and those who 
agreed with him] welcoming the Ambassador of republicanism who 
are warring [against] their darling aristocracy. But . . . shall the 
officers of our government prescribe rules of conduct to freemen? 
Fellow citizens, view this conduct [Neutrality] well and you will dis- 
cover principles lurking at bottom at variance with your liberty. Who 
is the superior of the people? Are we already so degenerate as to 
acknowledge a superior in the United States?" {General Advertiser, 
April 25, 1793.) 

3 "Our commercial and maritime people feel themselves deeply 
interested to prevent every act that may put our peace at hazard." 
(Cabot to King, Aug. 2, 1793; Lodge: Cabot, 74.) 

The merchants and traders of Baltimore, "as participants in the 
general prosperity resulting from peace, and the excellent laws and 
constitution of the United States . . . beg leave to express the high 
sense they entertain of the provident wisdom and watchfulness over 
the concerns and peace of a happy people which you have displayed 
in your late proclamation declaring neutrality . . . well convinced 
that the true interests of America consist in a conduct, impartial, 
friendly, and unoffending to all the belligerent, powers." (Address 
of the Merchants and Traders of Baltimore to George Washington, 
President of the United States; General Advertiser, Philadelphia, 
June 5, 1793.) 

4 Jefferson to Madison, May 19, 1793; Works: Ford, vii, 336. 
6 Jefferson to Monroe, May 5, 1793; ib„ 309. 



LEADING THE VIRGINIA FEDERALISTS 95 

"that great party [Republican] which denominated 
itself 'The People' could perceive only a settled 
hostility to France and to liberty." 1 

And, of course, Washington's proclamation of 
Neutrality was "unconstitutional," shouted the Re- 
publican politicians. Hamilton quickly answered. 
The power to deal with foreign affairs was, he said, 
lodged somewhere in the National Government. 
Where, then? Plainly not in the Legislative or Ju- 
dicial branches, but in the Executive Department, 
which is "the organ of intercourse between the na- 
tion and foreign nations" and "the interpreter of . . . 
treaties in those cases in which the judiciary is not 
competent — that is between government and gov- 
ernment. . . . The executive power of the United 
States is completely lodged in the President," with 
only those exceptions made by the Constitution, as 
that of declaring war. But if it is the right of Con- 
gress to declare war, "it is the duty of the Executive 
to preserve peace till the declaration is made." 2 

Washington's refusal to take sides in the Euro- 
pean war was still more fuel for the Republican fur- 
nace. The bill to maintain Neutrality escaped defeat 
in Congress by a dangerously narrow margin: on 
amendments and motions in the Senate it was res- 
cued time and again only by the deciding vote of 
the Vice-President. 3 In the House, resolutions were 
introduced which, in the perspective of history, were 
stupid. Public speakers searched for expressions 
strong enough for the popular taste; the newspapers 

1 Marshall ii, 273. 

2 Pacificus No. 1; Works- Lodge, iv, 432-44. 

3 Marshall, ii, 327. 



96 JOHN MARSHALL 

blazed with denunciation. "The artillery of the 
press," declares Marshall, "was played with unceas- 
ing fury on" the supporters of Neutrality; "and the 
democratic societies brought their whole force into 
operation. Language will scarcely afford terms of 
greater outrage, than were employed against those 
who sought to stem the torrent of public opinion 
and to moderate the rage of the moment." * 

At the most effective hour, politically, Jefferson 
resigned 2 from the Cabinet, as he had declared, two 
years before, he intended to do. 3 He had prepared 
well for popular leadership. His stinging criticism 
of the Nationalist financial measures, his warm 
championship of France, his bitter hostility to Great 
Britain, and most of all, his advocacy of the popular 
view of the Constitution, secured him the favor of 
the people. Had he remained Secretary of State, he 
would have found himself in a hazardous political 
situation. But now, freed from restraint, he could 
openly lead the Republican forces which so eagerly 
awaited his formal command. 4 

As in the struggle for the Constitution, so now 
Neutrality was saved by the combined efforts of 
the mercantile and financial interests who dreaded 
the effect of the war on business and credit; 5 and by 

1 Marshall, ii, 322. 

2 Jefferson to Washington, Dec. 31, 1793; Works: Ford, viii, 136. 
8 Jefferson to Short, Jan. 28, 1792; ib., vi, 382. 

4 Marshall, ii, 233. 

8 Generally speaking, the same classes that secured the Constitu- 
tion supported all the measures of Washington's Administration. 
(See Beard: Econ. 0. J. D., 122-24.) 

While the Republicans charged that Washington's Neutrality was 
inspired by favoritism to Great Britain, as it was certainly championed 
by trading and moneyed interests which dealt chiefly with British 



LEADING THE VIRGINIA FEDERALISTS 97 

the disinterested support of those who wished the 
United States to become a nation, distinct from, 
unconnected with, and unsubservient to any other 
government. 

Among these latter was John Marshall, although 
he also held the view of the commercial classes from 
which most of his best clients came; and his personal 
loyalty to Washington strengthened his opinions. 
Hot as Virginia was against the Administration, 
Marshall was equally hot in its favor. Although he 
was the most prudent of men, and in Virginia silence 
was the part of discretion for those who approved 
Washington's course, Marshall would not be still. 
He made speeches in support of Washington's stand, 
wrote pamphlets, and appealed in every possible 
way to the solid reason and genuine Americanism of 
his neighbors. He had, of course, read Hamilton's 
great defense of Neutrality; and he asserted that 
sound National policy required Neutrality and that 
it was the duty of the President to proclaim and 
enforce it. Over and over again, by tongue and pen, 

houses, the Federalists made the counter-charge, with equal accuracy, 
that the opponents of Neutrality were French partisans and encour- 
aged by those financially interested. 

The younger Adams, who was in Europe during most of this period 
and who carefully informed himself, writing from The Hague, de- 
clared that many Americans, some of them very important men, were 
"debtors to British merchants, creditors to the French government, 
and speculators in the French revolutionary funds, all to an immense 
amount," and that other Americans were heavily indebted in England. 
All these interests were against Neutrality and in favor of war with 
Great Britain — those owing British debts, because "war . . . would 
serve as a sponge for their debts," or at least postpone payment, and 
the creditors of the French securities, because French success would 
insure payment. (J. Q. Adams to his father, June 24, 1796; Writings, 
J.Q. 4.: Ford, i, 506.) 



93 JOHN MARSHALL 

he demonstrated the constitutional right of the 
Executive to institute and maintain the Nation's 
attitude of aloofness from foreign belligerents. 1 

Marshall rallied the friends of the Administration, 
not only in Richmond, but elsewhere in Virginia. 
"The [Administration] party in Richmond was soon 
set in motion," Monroe reported to Jefferson; " from 
what I have understood here [I] have reason to 
believe they mean to produce the most extensive 
effect they are capable of. Ml Marshall has written 
G. Jones 2 on the subject and the first appearances 
threatened the most furious attack on the French 
Minister [Genet]." 3 

At last Marshall's personal popularity could no 
longer save him from open and public attack. The 
enraged Republicans assailed him in pamphlets; 
he was criticized in the newspapers; his character 
was impugned. 4 He was branded with what, in 
Virginia, was at that time the ultimate reproach: 
Marshall, said the Republicans, was the friend and 
follower of Alexander Hamilton, the monarchist, 
the financial manipulator, the father of Assump- 
tion, the inventor of the rotten Funding system, the 
designer of the stock- jobbing Bank of the United 
States, and, worst of all, the champion of a power- 

1 Story, in Dillon, iii, 350. 

2 Gabriel Jones, the ablest lawyer in the Valley, and, of course, a 
stanch Federalist. 

3 Monroe to Jefferson, Sept. 3, 1793; Monroe's Writings: Hamilton, 
i, 274-75. Considering the intimate personal friendship existing be- 
tween Monroe and Marshall, the significance and importance of this 
letter cannot be overestimated. 

4 It was at this point, undoubtedly, that the slander concerning 
Marshall's habits was started. (See infra, 101-03.) 



LEADING THE VIRGINIA FEDERALISTS 99 

ful Nationalism and the implacable foe of the sov- 
ereignty of the States. 

Spiritedly Marshall made reply. He was, indeed, 
a disciple of Washington's great Secretary of the 
Treasury, he said, and proud of it; and he gloried 
in his fealty to Washington, for which also he had 
been blamed. In short, Marshall was aggressively 
for the Administration and all its measures. These 
were right, he said, and wise and necessary. Above 
all, since that was the chief ground of attack, all of 
them, from Assumption to Neutrality, were plainly 
constitutional. At a public meeting at Richmond, 
Marshall offered resolutions which he had drawn 
up in support of the Administration's foreign policy, 
spoke in their favor, and carried the meeting for 
them by a heavy majority. 1 

Marshall's bold course cost him the proffer of an 
honor. Our strained relations with the Spaniards 
required an alert, able, and cool-headed represent- 
ative to go to New Orleans. Jefferson 2 confided 
to Madison the task of finding such a man in 
Virginia. "My imagination has hunted thro' this 
whole state," Madison advised the Secretary of 
State in reply, "without being able to find a single 
character fitted for the mission to N. 0. Young 
Marshall seems to possess some of the qualifications, 
but there would be objections of several sorts to 

1 The above paragraphs are based on Justice Story's account of 
Marshall's activities at this period, supplemented by Madison and 
Monroe's letters; by the well-known political history of that time; 
and by the untrustworthy but not negligible testimony of tradition. 
While difficult to reconstruct a situation from such fragments, the 
account given in the text is believed to be substantially accurate. 

2 See Works: Ford, xii, footnote to 451. 



100 JOHN MARSHALL 

him." x Three months later Madison revealed one 
of these "several objections" to Marshall; but the 
principal one was his sturdy, fighting Nationalism. 
This "objection" was so intense that anybody who 
was even a close friend of Marshall was suspected 
and proscribed by the Republicans. The Jacobin 
Clubs of Paris were scarcely more intolerant than 
their disciples in America. 

So irritated, indeed, were the Republican lead- 
ers by Marshall's political efforts in support of 
Neutrality and other policies of the Administration, 
that they began to hint at improper motives. With 
his brother, brother-in-law, and General Henry Lee 
(then Governor of Virginia) Marshall had purchased 
the Fairfax estate. 2 This was evidence, said the Re- 
publicans, that he was the tool of the wicked financial 
interests. Madison hastened to inform Jefferson. 

"The circumstances which derogate from full con- 
fidence in W[ilson] Nicholas]," cautioned Madison, 
"are . . . his connection & intimacy with Marshall, 
of whose disinterestedness as well as understand- 
ing he has the highest opinion. It is said that 
Marshall, who is at the head of the great purchase 
from Fairfax, has lately obtained pecuniary aids 
from the bank [of the United States] or people con- 
nected with it. I think it certain that he must have 
felt, in the moment of purchase, an absolute con- 
fidence in the monied interests which will explain 
him to everyone that reflects in the active character 
he is assuming." 3 

1 Madison to Jefferson, June 17, 1793; Writings: Hunt, vi, 134. 

* See infra, chap. v. 

3 Madison to Jefferson, Sept. 2, 1793; Writings: Hunt, vi, 196. 



LEADING THE VIRGINIA FEDERALISTS 101 

In such fashion do the exigencies of politics gener- 
ate suspicion and false witness. Marshall received 
no money from the Bank for the Fairfax purchase 
and it tied him to "the monied interests" in no way 
except through business sympathy. He relied for 
help on his brother's father-in-law, Robert Morris, 
who expected to raise the funds for the Fairfax pur- 
chase from loans negotiated in Europe on the security 
of Morris's immense real-estate holdings in America. 1 
But even the once poised, charitable, and unsuspi- 
cious Madison had now acquired that state of mind 
which beholds in any business transaction, no matter 
how innocent, something furtive and sinister. His 
letter proves, however, that the fearless Richmond 
lawyer was making himself effectively felt as a prac- 
tical power for Washington's Administration, to the 
serious discomfort of the Republican chieftains. 

While Marshall was beloved by most of those 
who knew him and was astonishingly popular with 
the masses, jealousy of his ability and success had 
made remorseless enemies for him. It appears, in- 
deed, that a peculiarly malicious envy had pursued 
him almost from the time he had gone to Wil- 
liam and Mary College. His sister-in-law, with hot 
resentment, emphasizes this feature of Marshall's 
career. "Notwithstanding his amiable and correct 
conduct," writes Mrs. Carrington, "there were 
those who would catch at the most trifling circum- 
stance to throw a shade over his fair fame." He had 
little education, said his detractors; "his talents 

1 See infra, chap. v. Robert Morris secured in this way all the 
•noney he was able to give his son-in-law for the Fairfax purchase. 



102 JOHN MARSHALL 

were greatly overrated"; his habits were bad. 
"Tho' no man living ever had more ardent friends, 
yet there does not exist one who had at one time 
more slanderous enemies." * 

These now assailed Marshall with all their pent- 
up hatred. They stopped at no charge, hesitated 
at no insinuation. For instance, his conviviality was 
magnified into reports of excesses and the tale was 
carried to the President. "It was cruelly insinuated 
to G[eorge] Washington]," writes Marshall's sister- 
in-law, "by an after great S[olo?]n that to Mr. 
M[arsha]lls fondness for play was added an increas- 
ing fondness for liquor." Mrs. Carrington loyally 
defends Marshall, testifying, from her personal 

knowledge, that "this S n knew better than 

most others how Mr. M 11 always played for 

amusement and never, never for gain, and that he 
was, of all men, the most temperate." 2 

Considering the custom of the time 3 and the hab- 
its of the foremost men of that period, 4 Marshall's 

1 Mrs. Carrington to her sister Nancy; undated; MS. 2 lb. 

3 See supra, vol. I, chap. vii. 

4 See, for instance, Jefferson to Short (Sept 6, 1790; Works: Ford, 
vi, 146), describing a single order of wine for Washington and one for 
himself; and see Chastellux's account of an evening with Jefferson: 
"We were conversing one evening over a bowl of punch after Mrs. 
Jefferson had retired. Our conversation turned on the poems of 
Ossian. . . . The book was sent for and placed near the bowl, where 
by their mutual aid the night far advanced imperceptibly upon us." 
(Chastellux, 229.) 

Marshall's Account Book does not show any purchases of wine at 
all comparable with those of other contemporaries. In March, 1791, 
Marshall enters, "wine £60"; August, ditto, " £14-5-8"; September, 
1792, "Wine £70"; in July, 1793, "Whisky 6.3.9" (pounds, shillings, 
and pence); in May, 1794, "Rum and brandy 6-4"; August, 1794, 
ditto, five shillings, sixpence; May, 1795, "Whisky £6.16"; Sept.. 
"wine £3"; Oct., ditto, "£17.6." 



LEADING THE VIRGINIA FEDERALISTS 103 

sister-in-law is entirely accurate. Certainly this po- 
litical slander did not impress Washington, for his 
confidence in Marshall grew steadily; and, as we shall 
presently see, he continued to tender Marshall high 
honors and confide to him political tasks requiring 
delicate judgment. 

Such petty falsehoods did not disturb Marshall's 
composure. But he warmly resented the assault 
made upon him because of his friendship for Hamil- 
ton; and his anger was hot against what he felt was 
the sheer dishonesty of the attacks on the measures 
of the National Government. "I wish very much 
to see you," writes Marshall to Archibald Stuart at 
this time: "I want to observe [illegible] how much 
honest men you and I are [illegible] half our acquaint- 
ance. Seriously there appears to me every day to be 
more folly, envy, malice, and damn rascality in the 
world than there was the day before and I do verily 
begin to think that plain downright honesty and 
unintriguing integrity will be kicked out of doors." 1 

A picturesque incident gave to the Virginia oppo- 
nents of Washington's Administration more sub- 
stantial cause to hate Marshall than his pamphlets, 
speeches, and resolutions had afforded. At Smith- 
field, not far from Norfolk, the ship Unicorn was 
fitting out as a French privateer. The people of Isle 
of Wight County were almost unanimous in their 
sympathy with the project, and only seven or eight 
men could be procured to assist the United States 
Marshal in seizing and holding the vessel. 2 Twenty- 

1 Marshall to Stuart, March 27, 1794; MS., Va. Hist. Soc. 

2 Major George Keith Taylor to Brigadier-General Mathews, July 
19, 1794; Col. Va. St. Prs., vii, 223. 



104 JOHN MARSHALL 

five soldiers and three officers were sent from Norfolk 
in a revenue cutter; 1 but the Governor, considering 
this force insufficient to outface resistance and take 
the ship, dispatched Marshall, with a considerable 
body of militia, to Smithfield. 

Evidently the affair was believed to be serious; 
"the Particular Orders ... to Brigadier General 
Marshall" placed under his command forces of cav- 
alry, infantry, and artillery from Richmond and an- 
other body of troops from Petersburg. The Gover- 
nor assures Marshall that "the executive know that 
in your hands the dignity and rights of the Com- 
monwealth will ever be safe and they are also 
sure that prudence, affection to our deluded fellow 
citizens, and marked obedience to law in the means 
you will be compelled to adopt, will equally char- 
acterize every step of your procedure." He is di- 
rected to "collect every information respecting 
this daring violation of order," and particularly 
"the conduct of the Lieutenant Colonel Command- 
ant of Isle of Wight," who had disregarded his 
instructions. 2 

Clad in the uniform of a brigadier-general of the 
Virginia Militia, 3 Marshall set out for Smithfield rid- 
ing at the head of the cavalry, the light infantry and 

1 Mathews to Taylor, July 20, 1794; ib., 224. 

2 Governor Henry Lee " Commander-in-chief," to Marshall, July 
21, 1794; MS., "War 10," Archives, Va. St. Lib. 

3 " Dark blue coat, skirts lined with buff, capes, lapels and cuffs buff, 
buttons yellow. Epaulets gold one on each shoulder, black cocked hat, 
with black cockade, black stock, boots and side arms." (Division Or- 
ders, July 4, 1794; Cat. Va. St. Prs., vii, 204. But see Schoepf (ii, 43), 
where a uniform worn by one brigadier-general of Virginia Militia 
is described as consisting of " a large white hat, a blue coat, a brown 
waistcoat, and green breeches.") 



LEADING THE VIRGINIA FEDERALISTS 105 

artillery following by boat. 1 He found all thought of 
resistance abandoned upon his arrival. A "peaceable 
search" of Captain Sinclair's house revealed thirteen 
cannon with ball, grape-shot, and powder. Three 
more pieces of ordnance were stationed on the shore. 
Before General Marshall and his cavalry arrived, the 
United States Marshal had been insulted, and 
threatened with violence. Men had been heard load- 
ing muskets in Sinclair's house, and fifteen of these 
weapons, fully charged, were discovered. The house 
so "completely commanded the Deck of the" Uni- 
corn "that . . . one hundred men placed in the vessel 
could not have protected her ten minutes from 
fifteen placed in the house." 2 

The State and Federal officers had previously been 
able to get little aid of any kind, but "since the arri- 
val of distant militia," reports Marshall, "those of 
the County are as prompt as could be wished in ren- 
dering any service required of them," and he sug- 
gests that the commandant of the county, rather 
than the men, was responsible for the failure to act 
earlier. He at once sent messengers to the infantry 
and artillery detachment which had not yet arrived, 
with orders that they return to Richmond and 
Petersburg. 3 

Marshall "had . . . frequent conversations with 
individuals of the Isle of Wight" and found them 
much distressed at the necessity for calling distant 
militia "to protect from violence the laws of our 

1 Particular Orders, supra. 

2 Marshall to Governor of Virginia, July 23, 1794; Cat. Va. St. Prs., 
vii, 228; and same to same, July 28, 1794; ib„ 234. 

3 lb. 



106 JOHN MARSHALL 

common country. . . . The commanding officers [of 
the county] . . . seem not to have become sufficiently 
impressed with the importance of maintaining the 
Sovereignty of the law" says Marshall, but with un- 
warranted optimism he believes "that a more proper 
mode of thinking is beginning to prevail." 1 

Thus was the Smithfield defiance of Neutrality 
and the National laws quelled by strong measures, 
taken before it had gathered dangerous headway. 
"I am very much indebted to Brig.-Gen'l Marshall 
and Major Taylor 2 for their exertions in the execu- 
tion of my orders," writes Governor Lee to the 
Secretary of War. 3 

But the efforts of the National Government and 
the action of Governor Lee in Virginia to enforce 
obedience to National laws and observance of Neu- 
trality, while they succeeded locally in their immedi- 
ate purpose, did not modify the public temper to- 
ward the Administration. Neutrality, in particular, 
grew in disfavor among the people. When the con- 
gressional elections of 1794 came on, all complaints 
against the National Government were vivified by 
that burning question. As if, said the Republicans, 
there could be such a status as neutrality between 
"right and wrong," between "liberty" and "tyr- 
anny. 4 

Thus, in the campaign, the Republicans made the 
French cause their own. Everything that Washing- 

1 Marshall to Governor of Virginia, July 28, 1794; Gal. Va. St. Prs. 
vii, 235. 

2 George Keith Taylor; see infra, chaps, x and xn. 

3 Lee to the Secretary of War, July 28, 1794 ; Col. Va. St. Prs., vii, 234. 

4 See, for instance, Thompson's speech, infra, chap. vi. 



LEADING THE VIRGINIA FEDERALISTS 107 

ton's Administration had accomplished was wrong, 
said the Republicans, but Neutrality was the work 
of the Evil One. The same National power which 
had dared to issue this "edict" against American 
support of French "liberty" had foisted on the 
people Assumption, National Courts, and taxes on 
whiskey. This identical Nationalist crew had, said 
the Republicans, by Funding and National Banks, 
fostered, nay, created, stock-jobbing and specula- 
tion by which the few "monocrats" were made rich, 
while the many remained poor. Thus every Repub- 
lican candidate for Congress became a knight of the 
flaming sword, warring upon all evil, but especially 
and for the moment against the dragon of Neu- 
trality that the National Government had uncaged 
to help the monarchs of Europe destroy free gov- 
ernment in France. 1 Chiefly on that question the 
Republicans won the National House of Represent- 
atives. 

But if Neutrality lit the flames of public wrath, 
Washington's next act in foreign affairs was powder 
and oil cast upon fires already fiercely burning. 
Great Britain, by her war measures against France, 
did not spare America. She seized hundreds of 
American vessels trading with her enemy and even 
with neutrals; in order to starve France 2 she lifted 
cargoes from American bottoms; to man her warships 
she forcibly took sailors from American ships, "often 
leaving scarcely hands enough to navigate the vessel 
into port"; 3 she conducted herself as if she were 
not only mistress of the seas, but their sole pro- 

1 Marshall, ii, 293. 2 lb., 285. 8 lb., 285. 



108 JOHN MARSHALL 

prietor. 'And the British depredations were com- 
mitted in a manner harsh, brutal, and insulting. 

Even Marshall was aroused and wrote to his 
friend Stuart: "We fear, not without reason, a 
war. The man does not live who wishes for peace 
more than I do; but the outrages committed upon 
us are beyond human bearing. Farewell — pray 
Heaven we may weather the storm." * If the self- 
contained and cautious Marshall felt a just resent- 
ment of British outrage, we may, by that measure, 
accurately judge of the inflamed and dangerous 
condition of the general sentiment. 

Thus it came about that the deeply rooted hatred 
of the people for their former master 2 was heated 
to the point of reckless defiance. This was the same 
Monarchy, they truly said, that still kept the mili- 
tary and trading posts on American soil which, more 
than a decade before, it had, by the Treaty of Peace, 
solemnly promised to surrender. 3 The Government 
that was committing these savage outrages was the 
same faithless Power, declared the general voice, 
that had pledged compensation for the slaves its 
armies had carried away, but not one shilling of 
which had been paid. 

If ever a country had good cause for war, Great 
Britain then furnished it to America; and, had we 
been prepared, it is impossible to believe that we 

1 Marshall to Stuart, March 27, 1794; MS., Va. Hist. Soc. 

2 "The idea that Great Britain was the natural enemy of America 
had become habitual" long before this time. (Marshall, ii, 154.) 

3 One reason for Great Britain's unlawful retention of these posts 
was her purpose to maintain her monopoly of the fur trade. (/&., 194. 
And see Beard: Econ. 0. J. D., 279.) 



LEADING THE VIRGINIA FEDERALISTS 109 

should not have taken up arms to defend our ravaged 
interests and vindicate our insulted honor. In Con- 
gress various methods of justifiable retaliation were 
urged with intense earnestness, marred by loud and 
extravagant declamation. 1 "The noise of debate 
was more deafening than a mill. . . . We sleep 
upon our arms," wrote a member of the National 
House. 2 But these bellicose measures were rejected 
because any one of them would have meant imme- 
diate hostilities. 

For we were not prepared. War was the one thing 
America could not then afford. Our Government 
was still tottering on the unstable legs of infancy. 
Orderly society was only beginning and the spirit of 
unrest and upheaval was strong and active. In case 
of war, wrote Ames, expressing the conservative 
fears, "I dread anarchy more than great guns." 3 
Our resources had been bled white by the Revolu- 
tion and the desolating years that followed. We had 
no real army, no adequate arsenals, 4 no efficient ships 
of war; and the French Republic, surrounded by 
hostile bayonets and guns and battling for very ex- 
istence, could not send us armies, fleets, munitions, 
and money as the French Monarchy had done. 

Spain was on our south eager for more territory 
on the Mississippi, the mouth of which she con- 

1 Marshall, ii, 320-21 ; and see Annals, 3d Cong., 1st Sess., 1793, 
274-90; also Anderson, 29; and see prior war-inviting resolves and 
speeches in Annals, 3d Cong., supra, 21, 30, 544 et seq.; also Marshall, 
ii, 324 et seq. 

2 Ames to Dwight, Dec. 12, 1794; Works: Ames, i, 154. 

3 Ames to Gore, March 26, 1794; Worlcs: Ames, i, 140. And see 
Marshall, ii, 324 et seq. 

* Gee Washington to Ball, Aug. 10, 1794 ; Writings: Ford, xii, 44ft 



110 JOHN MARSHALL 

trolled; and ready to attack us in case we came to 
blows with Great Britain. The latter Power was on 
our north, the expelled Loyalists in Canada burn- 
ing with that natural resentment * which has never 
cooled; British soldiers held strategic posts within 
our territory; hordes of Indians, controlled and their 
leaders paid by Great Britain, 2 and hostile to the 
United States, were upon our borders anxious to 
avenge themselves for the defeats we had inflicted 
on them and their kinsmen in the savage wars in- 
cited by their British employers. 3 Worst of all, Brit- 
ish warships covered the oceans and patrolled every 
mile of our shores just beyond American waters. Our 
coast defenses, few, poor, and feeble in their best 
estate, had been utterly neglected for more than ten 
years and every American port was at the mercy 
of British guns. 4 

Evidence was not wanting that Great Britain 
courted war. 5 She had been cold and unresponsive to 
every approach for a better understanding with us. 
She had not even sent a Minister to our Government 
until eight years after the Treaty of Peace had been 
signed. 6 She not only held our posts, but established 

1 See Van Tyne, chap. xi. 2 Marshall, ii, 286, 287. 3 lb. 

4 John Quincy Adams, who was in London and who was intensely 
irritated by British conduct, concluded that: "A war at present with 
Great Britain must be total destruction to the commerce of our coun- 
try; for there is no maritime power on earth that can contend with the 
existing naval British force." (J. Q. Adams to Sargent, The Hague, 
Oct. 12, 1795; Writings, J. Q. A.: Ford, i, 419.) 

6 "I believe the intention is to draw the United States into it [war] 
merely to make tools of them. . . . The conduct of the British govern- 
ment is so well adapted to increasing our danger of war, that I cannot 
but suppose they are secretly inclined to produce it." (J. Q. Adams 
to his father, The Hague, Sept. 12, 1795; ib., 409.) 

6 Marshall, ii, 194. 



LEADING THE VIRGINIA FEDERALISTS 111 

a new one fifty miles south of Detroit; and her en- 
tire conduct indicated, and Washington believed, 
that she meant to draw a new boundary line which 
would give her exclusive possession of the Great 
Lakes. 1 She had the monopoly of the fur trade 2 
and plainly meant to keep it. 

Lord Dorchester, supreme representative of the 
British Crown in Canada, had made an ominous 
speech to the Indians predicting hostilities against 
the United States within a year and declaring that 
a new boundary line would then be drawn "by the 
warriors." 3 Rumors flew and gained volume and 
color in their flight. Even the poised and steady 
Marshall was disturbed. 

"We have some letters from Philadelphia that 
wear a very ugly aspect," he writes Archibald Stuart. 
"It is said that Simcoe, the Governor of Upper Can- 
ada, has entered the territory of the United States at 
the head of about 500 men and has possessed himself 
of Presque Isle." But Marshall cannot restrain his 
humor, notwithstanding the gravity of the report: 
"As this is in Pennsylvania," he observes, "I hope 
the democratic society of Philadelphia will at once 
demolish him and if they should fail I still trust that 
some of our upper brothers [Virginia Republicans] 
will at one stride place themselves by him and pros- 
trate his post. But seriously," continues Marshall, 

1 Marshall, ii, 337. 

3 lb., 195; and see Beard: Econ. 0. J. D„ 279. 

* See this speech in Rives, iii, footnote to 418-19. It is curious 
that Marshall, in his Life of Washington, makes the error of assert- 
ing that the account of Dorchester's speech was "not authentic." 
It is one of the very few mistakes in Marshall's careful book. (Mar- 
shall, ii, 320.) 



112 JOHN MARSHALL 

" if this be true we must bid adieu to all hope of peace 
and prepare for serious war. My only hope is that it 
is a mere speculating story." * 

Powerless to obtain our rights by force or to pre- 
vent their violation by being prepared to assert them 
with arms, Washington had no recourse but to di- 
plomacy. At all hazards and at any cost, war must 
be avoided for the time being. It was one of Great 
Britain's critical mistakes that she consented to 
treat instead of forcing a conflict with us ; for had she 
taken the latter course it is not improbable that, at 
the end of the war, the southern boundary of Brit- 
ish dominion in America would have been the Ohio 
River, and it is not impossible that New York and 
New England would have fallen into her hands. At 
the very least, there can be little doubt that the 
Great Lakes and the St. Lawrence would have be- 
come exclusively British waters. 2 

Amid a confusion of counsels, Washington deter- 
mined to try for a treaty of amity, commerce, and 

1 Marshall to Stuart, May 28, 1794; MS., Va. Hist. Soc. 

2 It must not be forgotten that we were not so well prepared for 
war in 1794 as the colonies had been in 1776, or as we were a few years 
after Jay was sent on his mission. And on the traditional policy of 
Great Britain when intending to make war on any country, see J. Q. 
Adams to his father, June 24, 1796; Writings, J. Q. A.: Ford, i, 499- 
500. 

Also, see same to same, The Hague, June 9, 1796; ib., 493, pre- 
dicting dissolution of the Union in case of war with Great Britain. "I 
confess it made me doubly desirous to quit a country where the 
malevolence that is so common against America was exulting in 
triumph." (Ib.) 

"The truth is that the American Government . . . have not upon 
earth more rancorous enemies, than the springs which move the ma- 
chine of this Country [England] . . . Between Great Britain and 
the United States no cordiality can exist." (Same to same, London, 
Feb. 10, 1796; ib., 477; also, March 24, 1794; ib., 18, 183, 187.) 



LEADING THE VIRGINIA FEDERALISTS 113 

navigation with Great Britain, a decision, the out- 
come of which was to bring Marshall even more con- 
spicuously into politics than he ever had been before. 
Indeed, the result of the President's policy, and 
Marshall's activity in support of it, was to become 
one of the important stepping-stones in the latter's 
career. 

Chief Justice Jay was selected for the infinitely 
delicate task of negotiation. Even the news of 
such a plan was received with stinging criticism. 
What! Kiss the hand that smote us! It was "a 
degrading insult to the American people; a pusil- 
lanimous surrender of their honor; and an insidious 
injury to France." * And our envoy to carry out this 
shameful programme ! — was it not that same Jay 
who once tried to barter away the Mississippi ? 2 

It was bad enough to turn our backs on France; 
but to treat with the British Government was in- 
famous. So spoke the voice of the people. The 
democratic societies were especially virulent; "Let 
us unite with France and stand or fall together" 3 
was their heroic sentiment. But abhorrence of the 
mission did not blind the Republicans to the ad- 
vantages of political craft. While the negotiations 
were in progress they said that, after all, everything 
would be gained that America desired, knowing that 
they could say afterward, as they did and with just 
cause, that everything had been lost. 4 

At last Jay secured from Great Britain the famous 

1 Marshall, ii, 363. 2 American Remembrancer, i, 9. 

3 Resolution of Wythe County (Va.) Democratic Society, quoted 
in Anderson, 32. 

4 Ames to Dwight, Feb. 3, 1795; Works: Ames, i, 166. 



114 JOHN MARSHALL 

treaty that bears his name. It is perhaps the most 
humiliating compact into which America ever en- 
tered. He was expected to secure the restriction 
of contraband — it was enlarged ; payment for the 
slaves — it was refused; recognition of the principle 
that "free ships make free goods" — at was denied; 
equality with France as to belligerent rights — it 
was not granted; opening of the West Indian trade 
— it was conceded upon hard and unjust condi- 
tions; payment for British spoliation of American 
commerce — it was promised at some future time, 
but even then only on the award of a commission; 
immediate surrender of the posts — their evacuation 
was agreed to, but not until a year and a half after 
the treaty was signed. 

On the other hand, the British secured from us 
free navigation and trading rights on the Mississippi 
— never contemplated; agreement that the United 
States would pay all debts due from American citi- 
zens to British creditors — a claim never admitted 
hitherto; prohibition of any future sequestration of 
British debts; freedom of all American ports to Brit- 
ish vessels, with a pledge to lay no further restric- 
tions on British commerce — never before proposed; 
liberty of Indians and British subjects to pass our 
frontiers, trade on our soil, retain lands occupied 
without becoming American citizens, but privileged 
to become such at pleasure — an odious provision, 
which, formerly, had never occurred to anybody. 

Thus, by the Treaty of 1794, we yielded every- 
thing and gained little not already ours. But we se- 
cured peace; we were saved from war. That supreme 



LEADING THE VIRGINIA FEDERALISTS 115 

end was worth the sacrifice and that, alone, justified 
it. It more than demonstrated the wisdom of the 
Jay Treaty. 

While the Senate was considering the bitter terms 
which Great Britain, with unsheathed sword, had 
forced upon us, Senator Stephen T. Mason of Vir- 
ginia, in violation of the Senate rules, gave a copy 
of the treaty to the press. 1 Instantly the whole land 
shook with a tornado of passionate protest. 2 From 
one end of the country to the other, public meetings 
were held. Boston led off. 3 Washington was smoth- 
ered with violent petitions that poured in upon him 
from every quarter praying, demanding, that he with- 
hold his assent. 4 iVs in the struggle for the Constitu- 
tion and in the violent attacks on Neutrality, so now 
the strongest advocates of the Jay Treaty were the 

1 Marshall, ii, 362-64. 2 lb., 366. 

3 The Boston men, it appears, had not even read the treaty, as 
was the case with other meetings which adopted resolutions of pro- 
test. (Marshall, ii, 365 et seq.) Thereupon the Boston satirists lam- 
pooned the hasty denunciators of the treaty as follows : — 

" I 've never read it, but I say 't is bad. 
If it goes down, I '11 bet my ears and eyes, 
It will the people all unpopularize; 
Boobies may hear it read ere they decide, 
I move it quickly be unratified." 

On Dr. Jarvis's speech at Faneuil Hall against the Jay Treaty; Loring: 
Hundred Boston Orators, 232. The Republicans were equally sarcastic : 
" I say the treaty is a good one . . . for I do not think about it. . . . 
What did we choose the Senate for . . . but to think for us. . . . Let 
the people remember that it is their sacred right to submit and obey ; 
and that all those who would persuade them that they have a right to 
think and speak on the sublime, mysterious, and to them incompre- 
hensible affairs of government are factious Democrats and outrageous 
Jacobins." (Essay on Jacobinical Thinkers: American Remembrancer, 
i, 141.) 

* See Marshall's vivid description of the popular reception of the 
treaty; Marshall, ii, 365-66. 



116 JOHN MARSHALL 

commercial interests. "The common opinion among 
men of business of all descriptions is," declares Ham- 
ilton, "that a disagreement would greatly shock 
and stagnate pecuniary plans and operations in 
general." 1 

The printing presses belched pamphlets and 
lampoons, scurrilous, inflammatory, even indecent. 
An example of these was a Boston screed. This 
classic of vituperation, connecting the treaty with 
the financial measures of Washington's Administra- 
tion, represented the Federalist leaders as servants 
of the Devil; Independence, after the death of his 
first wife, Virtue, married a foul creature, Vice, and 
finally himself expired in convulsions, leaving Spec- 
ulation, Bribery, and Corruption as the base off- 
spring of his second marriage. 2 

Everywhere Jay was burned in effigy. Hamilton 
was stoned in New York when he tried to speak to 
the mob; and with the blood pouring down his face 
went, with the few who were willing to listen to 
him, to the safety of a hall. 3 Even Washington's 
granite resolution was shaken. Only once in our 
history have the American people so scourged a 
great public servant. 4 He was no statesman, raged 
the Republicans; everybody knew that he had been 
a failure as a soldier, they said; and now, having 

1 Hamilton to King, June 20, 1795; Works: Lodge, x, 103. 

2 "An Emetic for Aristocrats. . . . Also a History of the Life and 
Death of Independence; Boston, 1795." Copies of such attacks were 
scattered broadcast — " Emissaries flew through the country spread- 
ing alarm and discontent." (Camillus, no. 1 ; Works: Lodge, v, 189-99.) 

3 McMaster, ii, 213-20; Gibbs, i, 207; and Hildreth, iv, 548. 

4 Present-day detraction of our public men is gentle reproof con- 
trasted with the savagery with which Washington was, thenceforth, 
assailed. 



LEADING THE VIRGINIA FEDERALISTS 117 

trampled on the Constitution and betrayed Amer- 
ica, let him be impeached, screamed the infuriated 
opposition. 1 Seldom has any measure of our Govern- 
ment awakened such convulsions of popular feeling 
as did the Jay Treaty, which, surrendering our 
righteous and immediate demands, yet saved our 
future. Marshall, watching it all, prepared to defend 
the popularly abhorred compact; and thus he was 
to become its leading defender in the South. 

When, finally, Washington reluctantly approved 
its ratification by the Senate, 2 many of his friends 
deserted him. 3 "The trouble and perplexities . . . 
have worn away my mind," wrote the abused and 
distracted President. 4 Mercer County, Kentucky, 

1 Marshall, ii, 370. Of the innumerable accounts of the abuse of 
Washington, Weld may be cited as the most moderate. After testi- 
fying to Washington's unpopularity this acute traveler says: "It is 
the spirit of dissatisfaction which forms a leading trait in the char- 
acter of the Americans as a people, which produces this malevolence 
[against Washington] ; if their public affairs were regulated by a person 
sent from heaven, I firmly believe his acts, instead of meeting with 
universal approbation, would by many be considered as deceitful and 
flagitious." (Weld, i, 108-09.) 

2 Washington almost determined to withhold ratification. (Mar- 
shall, ii, 362.) The treaty was signed November 19, 1794; received 
by the President, March 7, 1795; submitted to the Senate June 8, 
1795; ratified by the Senate June 24; and signed by Washington 
August 12, 1795." {lb., 360, 361, 368.) 

3 " Washington now defies the whole Sovereign that made him what 

he is and can unmake him again. Better his hand had been cut 

off when his glory was at its height before he blasted all his Laurels! " 
(Dr. Nathaniel Ames's Diary, Aug. 14, 1795; Dedham (Mass.) His- 
torical Register, vii, 33.) Of Washington's reply to the address of the 
merchants and traders of Philadelphia " An Old Soldier of '76," wrote: 
"Has adulation ... so bewildered his senses, that relinquishing even 
common decency, he tells 408 merchants and traders of Philadelphia 
that they are more immediately concerned than any other class of 
his fellow citizens?" (American Remembrancer, ii, 280-81.) 

4 Washington to Jay, May 8, 1796; Writings: Ford, xiii, 189. 



118 JOHN MARSHALL 

denounced Senator Humphrey Marshall for voting 
for ratification and demanded a constitutional 
amendment empowering State Legislatures to re- 
call Senators at will. 1 The Legislature of Virginia 
actually passed a resolution for an amendment of 
the National Constitution to make the House 
of Representatives a part of the treaty-making 
power. 2 The Lexington, Kentucky, resolutions 
branded the treaty as "shameful to the American 
name." 3 It was reported that at a dinner in Vir- 
ginia this toast was drunk: "A speedy death to 
General Washington." 4 Orators exhausted invec- 
tive; poets wrote in the ink of gall. 5 

Jefferson, in harmony, of course, with the public 
temper, was against the treaty. "So general a burst 
of dissatisfaction," he declared, "never before ap- 
peared against any transaction. . . . The whole body 
of the people . . . have taken a greater interest in 
this transaction than they were ever known to do 
in any other." 6 The Republican chieftain carefully 
observed the effect of the popular commotion on his 
own and the opposite party. "It has in my opinion 
completely demolished the monarchical party here 7 

1 American Remembrancer, ii, %65. 

1 Journal, H.D. (1795), 54-55; and see Anderson, 43. 

8 American Remembrancer, ii, 269. 

4 Ames to Gore, Jan. 10, 1795; Works: Ames, i, 161. 

* "This treaty in one page confines, 

The sad result of base designs; 

The wretched purchase here behold 

Of Traitors — ■ who their country sold. 

Here, in their proper shape and mien, 

Fraud, perjury, and guilt are seen." 

(Freneau, iii, 133.) 

6 Jefferson to Monroe, Sept. 6, 1795; Works: Ford, viii, 187-88. 

7 lb. 



LEADING THE VIRGINIA FEDERALISTS 119 

[Virginia]." Jefferson thought the treaty itself so 
bad that it nearly turned him against all treaties. 
"I am not satisfied," said he, "we should not be 
better without treaties with any nation. But I 
am satisfied we should be better without such as 
this." » 

The deadliest charge against the treaty was the 
now familiar one of "unconstitutionality." Many 
urged that the President had no power to begin 
negotiations without the assent of the Senate; 2 and 
all opponents agreed that it flagrantly violated the 
Constitution in several respects, especially in regu- 
lating trade, to do which was the exclusive province 
of Congress. 3 Once more, avowed the Jeffersonians, it 
was the National Government which had brought 
upon America this disgrace. " Not one in a thousand 
would have resisted Great Britain ... in the be- 

1 Jefferson to Tazewell, Sept. 13, 1795; Works: Ford, viii, 191. The 
Jay Treaty and Neutrality must be considered together, if the temper 
of the times is to be understood. "If our neutrality be still preserved, 
it will be due to the President alone," writes the younger Adams 
from Europe. "Nothing but his weight of character and reputation, 
combined with his firmness and political intrepidity could have 
stood against the torrent that is still tumbling with a fury that re- 
sounds even across the Atlantic. ... If his system of administration 
now prevails, ten years more will place the United States among 
the most powerful and opulent nations on earth. . . . Now, when a 
powerful party at home and a mighty influence from abroad, are 
joining all their forces to assail his reputation, and his character I 
think it my duty as an American to avow my sentiments." (J. Q. 
Adams to Bourne, Dec. 24, 1795; Writings, J. Q. A.: Ford, i, 467.) 

2 Charles Pinckney's Speech; American Remembrancer, i, 7. 

3 Marshall, ii, 378. The Republicans insisted that the assent of 
the House of Representatives is necessary to the ratification of any 
treaty that affects commerce, requires appropriation of money, or 
where any act of Congress whatever may be necessary to carry a 
treaty into effect. (lb.; and see Livingston's resolutions and debate; 
Annals, 4th Cong., 1st Sess., 1795, 426; 628.) 



120 JOHN MARSHALL 

ginning of the Revolution" if the vile conduct of 
Washington had been foreseen ; and it was plain, at 
this late day, that "either the Federal or State 
governments must fall" — so wrote Republican 
pamphleteers, so spoke Republican orators. 1 

Again Hamilton brought into action the artillery 
of his astounding intellect. In a series of public let- 
ters under the signature of "Camillus," he vindi- 
cated every feature of the treaty, evading nothing, 
conceding nothing. These papers were his last great 
constructive work. In numbers three, six, thirty- 
seven, and thirty-eight of " Camillus," he expounded 
the Constitution on the treaty-making power; dem- 
onstrated the exclusive right of the President to 
negotiate, and, with the Senate, to conclude, treat- 
ies; and proved, not only that the House should 
not be consulted, but that it is bound by the Con- 
stitution itself to pass all laws necessary to carry 
treaties into effect. 2 

Fearless, indeed, and void of political ambition 
were those who dared to face the tempest. "The 
cry against the Treaty is like that against a mad- 
dog," wrote Washington from Mount Vernon. 3 Par- 
ticularly was this true of Virginia, where it raged un- 

1 "Priestly's Emigration," printed in Cobbett, i, 196, quoting 
"Agricola." 

2 "Camillus"; Works: Lodge, v and vi. It is impossible to give a 
satisfactory condensation of these monumental papers. Struck off 
in haste and under greatest pressure, they equal if not surpass Ham- 
ilton's "First Report on the Public Credit," his "Opinion as to 
the Constitutionality of the Bank of the United States," or his 
"Report on Manufactures." As an intellectual performance, the 
"Letters of Camillus" come near being Hamilton's masterpiece. 

3 Washington to Hamilton, July 29, 1795; Writings: Ford, xiii, 
76. 



LEADING THE VIRGINIA FEDERALISTS 121 

governably. 1 A meeting of Richmond citizens "have 
outdone all that has gone before them" in the res- 
olutions passed, 2 bitterly complained Washington. 
Virginians, testified Jefferson, "were never more 
unanimous. 4. or 5. individuals of Richmond, dis- 
tinguished however, by their talents as by their 
devotion to all the sacred acts of the government, & 
the town of Alexandria constitute the whole support 
of that instrument [Jay Treaty] here." 3 These four 
or five devoted ones, said Jefferson, were "Marshall, 
Carrington, Harvey, Bushrod Washington, Doctor 
Stewart." 4 But, as we are now to see, Marshall made 
up in boldness and ability what the Virginia friends 
of the Administration lacked in numbers. 

1 The whole country was against the treaty on general grounds; 
but Virginia was especially hostile because of the sore question of 
runaway slaves and the British debts. 

2 Washington to Randolph, Aug. 4, 1795; Writings: Ford, xiii, 
footnote to 86. See Resolutions, which were comparatively mild; 
American Remembrancer, i, 133-34; and see Richmond and Manchester 
Advertiser, of July 30, and Aug. 6, 1795. 

3 Jefferson to Coxe, Sept. 10, 1795; Works: Ford, vii, 29. 
« Jefferson to Monroe, Sept. 6, 1795; ib., 27. 



CHAPTER IV 

Washington's defender 

His [Marshall's] lax, lounging manners have made him popular. (Jefferson.) 
Having a high opinion of General Marshall's honor, prudence, and judgment, 
consult him. (Washington.) 

The man [Washington] who is the source of all the misfortunes of our coun- 
try is no longer possessed of the power to multiply evils on the United States. 
(The Aurora on Washington's retirement from the Presidency.) 

Jefferson properly named Marshall as the first 
of Washington's friends in Virginia. For, by now, 
he had become the leader of the Virginia Federalists. 
His lucid common sense, his level poise, his steady 
courage, his rock-like reliability — these qualities, 
together with his almost uncanny influence over his 
constituents, had made him chief in the Virginia 
Federalist councils. 

So high had Marshall risen in Washington's es- 
teem and confidence that the President urged him 
to become a member of the Cabinet. 

"The office of Attorney Gen 1 - of the United States 
has become vacant by the death of Will Bradford, 
Esq. 1 I take the earliest opportunity of asking if you 
will accept the appointment? The salary annexed 
thereto, and the prospects of lucrative practice in 
this city [Philadelphia] — the present seat of the 
Gen 1 . Government, must be as well known to you, 
perhaps better, than they are to me, and therefore 
I shall say nothing concerning them. 

1 When Jefferson resigned, Randolph succeeded him as Secretary 
of State, and continued in that office until driven out of public life 
by the famous Fauchet disclosure. William Bradford of Pennsylvania 
succeeded Randolph as Attorney-General. 



WASHINGTON'S DEFENDER 123 

" If your answer is in the affirmative, it will read- 
ily occur to you that no unnecessary time should be 
lost in repairing to this place. If, on the contrary, 
it should be the negative (which would give me con- 
cern) it might be as well to say nothing of this offer. 
But in either case, I pray you to give me an answer 
as promptly as you can." * 

Marshall decided instantly; he could not possibly 
afford to accept a place yielding only fifteen hundred 
dollars annually, the salary of the Attorney-Gen- 
eral at that period, 2 and the duties of which per- 
mitted little time for private practice which w T as then 
allowable. 3 So Marshall, in a "few minutes" de- 
clined Washington's offer in a letter which is a model 
of good taste. 

"I had the honor of receiving a few minutes past 
your letter of the 26th inst. 

" While the business I have undertaken to complete 
in Richmond, 4 forbids me to change my situation 
tho for one infinitely more eligible, permit me Sir to 
express my sincere acknowledgments for the offer 
your letter contains & the real pride & gratification 
I feel at the favorable opinion it indicates. 

"I respect too highly the offices of the present 
government of the United States to permit it to be 
suspected that I have declined one of them." 5 

1 Washington to Marshall, Aug. 26, 1795; Washington MSS., Lib. 
Cong. 

2 Act of 1789, Annals, 1st Cong., 1st Sess., Appendix, 2238. 

3 For Randolph's pathetic account of his struggles to subsist as 
Attorney-General, see Conway, chap. xv. 

4 The Fairfax purchase. See infra, chap. v. 

5 Marshall to Washington, Aug. 31, 1795; Washington MSS., Lib. 
Cong. 



124 JOHN MARSHALL 

When he refused the office of Attorney-General, 
Washington, sorely perplexed, wrote Marshall's 
brother-in-law, 1 Edward Carrington, United States 
Marshal and Collector of Internal Revenue for the 
District of Virginia, 2 a letter, "the whole" of which 
" is perfectly confidential, written, perhaps, with more 
candor than prudence," concerning Innes or Henry 
for the place; but, says the President, "having a 
high opinion of General 3 Marshall's honor, prudence, 
and judgment," Carrington must consult him. 4 

The harassed President had now come to lean 
heavily on Marshall in Virginia affairs; indeed, it 
may be said that he was Washington's political agent 
at the State Capital. Carrington's answer is typical 
of his reports to the President: "The inquiry [con- 
cerning the selection of an Attorney-General] which 
you have been pleased to submit to Gen- Marshall 
and myself demands & receives our most serious at- 
tention — On his [Marshall's] aid I rely for giving 
you accurate information." 5 

Later Carrington advises Washington that Mar- 
shall "wishes an opportunity of conversing with 
Col. Innes before he decides." 6 Innes was absent at 
Williamsburg; and although the matter was urgent, 
Marshall and Carrington did not write Innes, be- 

1 See infra, chap. v. 

2 Executive Journal, U.S. Senate, i, 81, 82. And see Washington's 
Diary: Lossing, 166. Carrington held both of these offices at the same 
time. 

3 Referring to Marshall's title as General of Virginia Militia. He 
was called "General" from that time until he became Chief Justice 
of the United States. 

* Washington to Carrington, Oct. 9, 1795; Writings: Ford, xiii, 116. 
5 Carrington to Washington, Oct. 2, 1795; MS., Lib. Cong. 6 lb. 



WASHINGTON'S DEFENDER 125 

cause, to do so, would involve a decisive offer from 
Washington which "Gen? Marshall does not think 
advisable." l 

W 7 hen Washington's second letter, suggesting 
Patrick Henry, was received by Carrington, he "im- 
mediately consulted Gen- Marshall thereon"; and 
was guided by his opinion. Marshall thought that 
Washington's letter should be forwarded to Henry 
because "his nonacceptance, from domestic consid- 
erations, may be calculated on"; the offer "must 
tend to soften" Henry "if he has any asperities"; 
and the whole affair would make Henry "active 
on the side of Government & order." 2 

Marshall argued that, if Henry should accept, 
his friendship for the Administration could be 
counted on. But Marshall's strongest reason for 
trying to induce Henry to become a member of the 
Cabinet was, says Carrington, that " we are fully per- 
suaded that a more deadly blow could not be given 
to the Faction [Republican party] in Virginia, & per- 
haps elsewhere, than that Gentleman's acceptance of 
the " Attorney- Generalship. "So much have the op- 
posers of the Government held him [Henry] up as 
their oracle, even since he has ceased to respond to 
them, that any event demonstrating his active sup- 
port to Government, could not but give the [Re- 
publican] party a severe shock." 3 

1 Carrington to Washington, Oct. 8, 1795; MS., Lib. Cong. 

2 lb., Oct. 13, 1795; MS., Lib. Cong. 

3 lb. A passage in this letter clearly shows the Federalist opinion of 
the young Republican Party and suggests the economic line dividing 
it from the Federalists. "In the present crisis Mr. H.[enry] may reas- 
onably be calculated on as taking the side of Government, even though 
he may retain his old prejudices against the Constitution. He has 



126 JOHN MARSHALL 

A week later Carrington reports that Henry's 
"conduct & sentiments generally both as to govern- 
ment & yourself [Washington] are such as we [Mar- 
shall and Carrington] calculated on . . . which assure 
us of his discountenancing calumny of every descrip- 
tion & disorder," 1 meaning that Henry was hostile 
to the Republicans. 

In the rancorous assaults upon the Jay Treaty in 
Virginia, Marshall, of course, promptly took his 
position by Washington's side, and stoutly defended 
the President and even the hated compact itself. 
Little cared Marshall for the effect of his stand upon 
his popularity. Not at all did he fear or hesitate 
to take that stand. And high courage was required 
to resist the almost universal denunciation of the 
treaty in Virginia. Nor was this confined to the 
masses of the people; it was expressed also by most 
of the leading men in the various communities. At 
every meeting of protest, well-drawn and apparently 
convincing resolutions were adopted, and able, al- 
beit extravagant, speeches were made against the 
treaty and the Administration. 

Typical of these was the address of John Thomp- 
son at Petersburg, August 1, 1795. 2 With whom, 

indubitably an abhorrence of Anarchy. . . . We know too that he is 
improving his fortune fast, which must additionally attach him to 
the existing Government & order, the only Guarantees of property. 
Add to all this, that he has no affection for the present leaders of the 
opposition in Virg* " (Carrington to Washington, Oct. 13, 1795; 
MS., Lib. Cong.) 

1 Carrington to Washington, Oct. 20, 1795; MS., Lib. Cong. 
Carrington's correspondence shows that everything was done on 
Marshall's judgment and that Marshall himself personally handled 
most of the negotiations. (See ib., Oct. 28; Oct. 30, 1795.) 

2 American Remembrancer, i, 21 et seq. John Thompson was nine- 
teen years old when he delivered this address. His extravagant 



WASHINGTON'S DEFENDER 127 

asked Thompson, was the treaty made? With the 
British King "who had sworn eternal enmity to 
republics"; that hateful monarch who was trying 
"to stifle the liberty of France" and "to starve thirty 
millions of men" by "intercepting the correspond- 
ence and plundering the commerce of neutral na- 
tions," especially that of the United States. The 
British, declared Thompson, sought "the destruc- 
tion of our rising commerce; the annihilation of our 
growing navigation," and were pursuing that object 
"with all the . . . oppression which rapacity can 
practice." 

Sequestration of British debts and other justi- 
fiable measures of retaliation would, said he, have 
stopped Great Britain's lawless practices. But the 
Administration preferred to treat with that malign 
Power; and our envoy, Jay, instead of "preserving 
the attitude of dignity and speaking the language 
of truth . . . basely apostatizing from republican 
principles, stooped to offer the incense of flattery 
to a tyrant, the scourge of his country, the foe of 
mankind. . . . Yes!" exclaimed the radical orator, 
"we hesitated to offend a proud King, who had cap- 
tured our vessels, enslaved our fellow-citizens, ruined 
our merchants, invaded our territory and trampled 
on our sovereignty." In spite of these wrongs and in- 
sults, "we prostrated ourselves before him, smiled in 
his face, flattered, and obtained this treaty." 

The treaty thus negotiated was, declared Thomp- 
son, the climax of the Funding system which had 

rhetoric rather than his solid argument is quoted in the text as better 
illustrating the public temper and prevailing style of oratory. (See 
sketch of this remarkable young Virginian, infra, chap. X.) 



128 JOHN MARSHALL 

"organized a great aristocracy . . . usurped the 
dominion of the senate . . . often preponderated 
in the house of representatives and which proclaims 
itself in servile addresses to our supreme executive, 
in dangerous appointments, in monstrous accumula- 
tions of debt, in violation of the constitution, in 
proscriptions of democrats, and, to complete the 
climax of political infamy, in this treaty." 

Concerning the refusal to observe the principle that 
"free bottoms make free goods," our yielding the 
point rendered us, avowed Thompson, "a cowardly 
confederate . . . of . . . ruthless despots, who march 
to desolate France, to restore the altars of barbar- 
ous superstition and to extinguish the celestial light 
which has burst upon the human mind. O my 
countrymen, when you are capable of such monstrous 
baseness, even the patriot will invoke upon you the 
contempt of ages." This humiliation had been 
thrust upon us as a natural result of Washington's 
Neutrality proclamation — "a sullen neutrality be- 
tween freemen and despots." 

Thompson's searching, if boyish, rhetoric truly 
expressed the feeling in the hearts of the people; it 
was a frenzied sentiment with which Marshall had 
to contend. Notwithstanding his blazing language, 
Thompson analyzed the treaty with ability. In com- 
mon with opponents of the treaty everywhere, he 
laid strongest emphasis on its unconstitutionality 

1 A favorite Republican charge was that the treaty would separate 
us from France and tie us to Great Britain: " A treaty which children 
cannot read without discovering that it tends to disunite us from our 
present ally, and unite us to a government which we abhor, detest and 
despise." (" An Old Soldier of '76 "; American Remembrancer, ii, 281.) 



WASHINGTON'S DEFENDER 129 

and the "usurpation " by the President and Senate of 
the rights and powers of the House of Representa- 
tives. 

But Thompson also mentioned one point that 
touched Marshall closely. "The ninth article," 
said he, "invades the rights of this commonwealth, 
by contemplating the case of Denny Fairfax." * 
Marshall and his brother were now the owners of 
this estate; 2 and the Jay Treaty confirmed all trans- 
fers of British property and authorized British sub- 
jects to grant, sell, or devise lands held in America 
in the same manner as if they were citizens of the 
United States. In Congress a few months later, 
Giles, who, declared Ames, "has no scruples and 
certainly less sense," 3 touched lightly on this same 
chord. 4 So did Heath, who was from that part of 
Virginia lying within the Fairfax grant. 5 

Such was the public temper in Virginia, as accu- 
rately if bombastically expressed by the youthful 
Thompson, when the elections for the Legislature of 
1795 were held. It was certain that the General As- 
sembly would take drastic and hostile action against 
the treaty; and, perhaps, against Washington him- 
self, in case the Republicans secured a majority in 
that body. The Federalists were in terror and justly 
so; for the Republicans, their strength much in- 
creased by the treaty, were aggressive and confident. 

1 American Remembrancer, i, 27. * See infra, chap. v. 

3 Ames to Gore, March 11, 1796; Works: Ames, i, 189. 

4 Annals, 4th Cong., 1st Sess., 1033-34. 

6 76., 1063. See Anderson, 41-43. As one of the purchasers of the 
Fairfax estate, Marshall had a personal interest in the Jay Treaty, 
though it does not appear that this influenced him in his support 
of it. 



ISO JOHN MARSHALL 

The Federalist candidate in Richmond was the 
member of the Legislature whom the Federalists had 
succeeded in electing after Marshall's retirement 
three years before. He was Marshall's intimate friend 
and a stanch supporter of Washington's Adminis- 
tration. Rut it appears that in the present crisis 
his popularity was not sufficient to secure his elec- 
tion, nor his courage robust enough for the stern 
fight that was certain to develop in the General 
Assembly. 

The polls were open and the voting in progress. 
Marshall was among the first to arrive; and he 
announced his choice. 1 Upon his appearance "a 
gentleman demanded that a poll be opened for 
Mr. Marshall." 2 Marshall, of course, indignantly 
refused; he had promised to support his friend, he 
avowed, and now to become a candidate was against 
"his wishes and feeling and honor." But Marshall 
promised that he would stand for the Legislature 
the following year. 

Thereupon Marshall left the polls and went to the 
court-house to make an argument in a case then 
pending. No sooner had he departed than a poll 
was opened for him in spite of his objections; 3 he 
was elected; and in the evening was told of the 
undesired honor with which the freeholders of 
Richmond had crowned him. 

1 The voting was viva voce. See infra, chap. x. 

2 Undoubtedly this gentleman was one of the perturbed Federalist 
managers. 

3 North American Review, xxvi, 22. While this story seems improb- 
able, no evidence has appeared which throws doubt upon it. At any 
rate, it serves to illustrate Marshall's astonishing popularity. 



WASHINGTON'S DEFENDER 131 

Washington was apprehensive of the newly elected 
Legislature. He anxiously questioned Carrington 
"as to the temper of our Assembly." The latter 
reported that he did not "expect an extravagant 
conduct during the session." x He thought that 
"the spirit of dissatisfaction is considerably abated 
abroad" (throughout Virginia and away from Rich- 
mond), because recent attempts to hold county and 
district meetings "for the avowed purpose of con- 
demning the Administration & the Treaty" had 
been "abortive." It seemed to him, however, that 
"there is a very general impression unfavorable to 
the Treaty, owing to the greater industry of those 
who revile, over the supporters of it." 2 

Still, Carrington was not sure about the Legisla- 
ture itself; for, as he said, "it has every year for sev- 
eral past been observable, that, at meeting [of the 
Legislature] but few hot heads were to be seen, while 
the great body were rational; but in the course of 
the session it has seldom happened otherwise than 

1 Carrington's reports to Washington were often absurd in their 
optimistic inaccuracy. They are typical of those which faithful office- 
holding politicians habitually make to the appointing power. For in- 
stance, Carrington told Washington in 1791 that, after traveling all 
over Virginia as United States Marshal and Collector of Internal 
Revenue, he was sure the people were content with Assumption and 
the whiskey tax (Washington's Diary: Lossing, footnote to 166), when, 
as a matter of fact, the State was boiling with opposition to those 
very measures. 

2 The mingling, in the Republican mind, of the Jay Treaty, Neu- 
trality, unfriendliness to France, and the Federalist Party is illus- 
trated in a toast at a dinner in Lexington, Virginia, to Senator 
Brown, who had voted against the treaty: "The French Republic 
— May every power or party who would attempt to throw any 
obstacle in the way of its independence or happiness receive the 
reward due to corruption." {Richmond and Manchester Advertiser 
Oct. 15, 1795.) 



132 JOHN MARSHALL 

that the spirit of party has been communicated so 
as to infect a majority. In the present instance I 
verily believe a question put on this day [the first 
day of the session] for making the Treaty a subject 
of consideration would be negatived — yet sundry 
members are here who will attempt every injury 
to both the Administration & the Treaty. The 
party will want ability in their leaders. . . . General 
Lee, C. Lee, Gen! Marshall & Mr. Andrews will act 
with ability on the defensive." 1 

Three days later the buoyant official advised the 
President that the Republicans doubted their own 
strength and, at worst, would delay their attack 
"in order that, as usual, a heat may be generated." 
Marshall was still busy searching for a properly qual- 
ified person to appoint to the unfilled vacancy in 
the office of Attorney-General; and Carrington tells 
Washington that "Gen! Marshall and myself have 
had a private consultation" on that subject and had 
decided to recommend Judge Blain. But, he adds, 
"The suggestion rests entirely with Gen 1 - M[arshall] 
& myself & will there expire, should you, for any 
consideration, forbear to adopt it." His real message 
of joy, however, was the happy frame of mind of 
the Legislature. 2 

Alas for this prophecy of optimism ! The Legisla- 
ture had not been in session a week before the 
anti-Administration Banquo's ghost showed its grim 
visage. The Republicans offered a resolution ap- 
proving the vote of Virginia Senators against the 

1 Carrington to Washington, Nov. 10, 1795; MS., Lib. Cong. 
8 lb., Nov. 13, 1795; MS.; Lib. Cong. 



WASHINGTON'S DEFENDER 133 

Jay Treaty. For three days the debate raged. 
Marshall led the Federalist forces. "The support of 
the Treaty has fallen altogether on Gen 1 - Marshall 
and Mr. Chas. Lee," Carrington reports to Wash- 
ington. 2 

Among the many objections to the treaty the 
principal one, as we have seen, was that it violated 
the Constitution. The treaty regulated commerce; 
the Constitution gave that power to Congress, 
which included the House of Representatives; yet 
the House had not been consulted. The treaty 
involved naturalization, the punishment of piracies, 
the laying of imposts and the expenditure of money 
— all of these subjects were expressly placed under 
the control of Congress and one of them 3 (the 
raising and expending of public money) must origi- 
nate in the House; yet that popular branch of the 
Government had been ignored. The treaty provided 
for a quasi-judicial commission to settle the question 
of the British debts; yet "all the power of the Fed- 
eral government with respect to debts is given 
[Congress] by a concise article of the Constitution. 
. . . What article of the Constitution authorizes 
President and Senate to establish a judiciary colos- 
sus which is to stand with one foot on America and 
the other on Britain, and drag the reluctant govern- 
ments of those countries to the altar of justice?" 4 

1 The resolution "was warmly agitated three whole days." (Ran- 
dolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, footnote to 197.) 

2 Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong. 

3 See debates; Annals, 4th Cong., 1st Sess., 423-1291; also see 
Petersburg Resolutions; American Remembrancer, i, 102-07. 

4 Thompson's address, Aug. 1, 1795, at Petersburg; ib., 21 et seq. 



134 JOHN MARSHALL 

Thus the question was raised whether a commer- 
cial treaty, or an international compact requiring 
an appropriation of money, or, indeed, any treaty 
whatever in the execution of which any action of 
any kind on the part of the House of Representa- 
tives was necessary, could be made without the 
concurrence of the House as well as the Senate. 
On this, the only vital and enduring question in- 
volved, Marshall's views were clear and unshak- 
able. 

The defense of the constitutional power of the 
President and Senate to make treaties was placed 
solely on Marshall's shoulders. The Federalists con- 
sidered his argument a conclusive demonstration. 
Carrington wrote Washington that "on the point of 
constitutionality many conversions were acknowl- 
edged." 1 He was mistaken; the Republicans were 
not impressed. On the contrary, they thought that 
the treaty "was much less ably defended than op- 
posed." 2 

The Republicans had been very much alarmed 
over Marshall and especially feared the effect of one 
clever move. "John Marshall," wrote Jefferson's 
son-in-law from Richmond to the Republican com- 
mander in Monticello, "it was once apprehended 
would make a great number of converts by an argu- 
ment which cannot be considered in any other light 
than an uncandid artifice. To prevent what would 
be a virtual censure of the President's conduct he 
maintained that the treaty in all its commercial parts 

1 Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong. 

2 Randolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, footnote 
to 197. 



WASHINGTON'S DEFENDER 135 

was still under the power of the H.[o\ise] of i?.[epre- 
sentatives]." 1 

Marshall, indeed, did make the most of this 
point. It was better, said he, and "more in the spirit 
of the constitution " for the National House to refuse 
support after ratification than to have a treaty "sti- 
fled in embryo" by the House passing upon it before 
ratification. "He compared the relation of the Exec- 
utive and the Legislative department to that be- 
tween the states and the Congress under the old con- 
federation. The old Congress might have given up 
the right of laying discriminating duties in favor of 
any nation by treaty; it would never have thought 
of taking beforehand the assent of each state thereto. 
Yet, no one would have pretended to deny the 
power of the states to lay such [discriminating du- 
ties]." 2 

Such is an unfriendly report of this part of Mar- 
shall's effort which, wrote Jefferson's informant, "is 
all that is original in his argument. The sophisms 
of Camillus, & the nice distinctions of the Examiner 
made up the rest." 3 Marshall's position was that a 
"treaty is as completely a valid and obligatory con- 
tract when negotiated by the President and ratified 
by him, with the assent and advice of the Senate, as 
if sanctioned by the House of Representatives also, 
under a constitution requiring such sanction"; and 
he admitted only that the powers of the House in 

1 Randolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, foot- 
note to 197. 

2 lb. 

3 lb. See Hamilton's dissertation on the treaty-making power in 
numbers 36, 37, 38, of his " Camillus "; Works: Lodge, vi, 160-97. 



136 JOHN MARSHALL 

reference to a treaty were limited to granting or re* 
fusing appropriations to carry it into effect. 1 

But as a matter of practical tactics to get votes, 
Marshall appears to have put this in the form of an 
assertion — no matter what treaty the President and 
Senate made, the House held the whip hand, he ar- 
gued, and in the end, could do what it liked; why 
then unnecessarily affront and humiliate Washington 
by applauding the Virginia Senators for their vote 
against the treaty? This turn of Marshall's, thought 
the Republicans, "was brought forward for the 
purpose of gaining over the unwary & wavering. It 
has never been admitted by the writers in favor of 
the treaty to the northward." 2 

But neither Marshall's unanswerable argument 
on the treaty-making power, nor his cleverness in 
holding up the National House of Representatives as 
the final arbiter, availed anything. The Federalists 
offered an amendment affirming that the President 
and Senate "have a right to make" a treaty; that 
discussion of a treaty in a State Legislature, "except 
as to its constitutionality," was unnecessary; and 
that the Legislature could not give "any mature 
opinion upon the conduct of the Senators from 
Virginia . . . without a full investigation of the 
treaty." They were defeated by a majority of 46 
out of a total of 150 members present and voting; 
John Marshall voting for the amendment. 3 On the 
main resolution proposed by the Republicans the 

1 Marshall to Hamilton, April 25, 1796; Works: Hamilton, vi, 
109. 

2 Randolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, 198. 

3 Journal, H.D. (Nov. 20, 1795), 27-28. 



WASHINGTON'S DEFENDER 137 

Federalists lost two votes and were crushed by a 
majority of two to one; Marshall, of course, voting 
with the minority. 1 

Carrington hastily reported to Washington that 
though "the discussion has been an able one on 
the side of the Treaty," yet, " such was the apprehen- 
sion that a vote in its favor would be unpopular, 
that argument was lost"; and that, notwithstanding 
many members were convinced by Marshall's con- 
stitutional argument, "obligations of expediency" 
held them in line against the Administration. The 
sanguine Carrington assured the President, how- 
ever, that "during the discussion there has been 
preserved a decided respect for & confidence in 
you." 2 

But alas again for the expectations of sanguinity ! 
The Republican resolution was, as Jefferson's son- 
in-law had reported to the Republican headquarters 
at Monticello, "a virtual censure of the President's 
conduct." This was the situation at the close of the 
day's debate. Realizing it, as the night wore on, 
Washington's friends determined to relieve the 
President of this implied rebuke by the Legislature 
of his own State. The Republicans had carried their 
point; and surely, thought Washington's supporters, 
the Legislature of Virginia would not openly affront 
the greatest of all Americans, the pride of the State, 
and the President of the Nation. 

Infatuated imagination! The next morning the 
friends of the Administration offered a resolution 

1 Journal, H.D. (Nov. 20, 1795), 28. 

2 Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong. 



138 JOHN MARSHALL 

that Washington's "motives" in approving the 
treaty met "the entire approbation of this House"; 
and that Washington, "for his great abilities, wis- 
dom and integrity merits and possesses the undi- 
minished confidence of his country." The resolution 
came near passing. But some lynx-eyed Republican 
discovered in the nick of time the word "wisdom." 1 
That would never do. The Republicans, therefore, 
offered an amendment "that this House do enter- 
tain the highest sense of the integrity and patriot- 
ism of the President of the United States; and that 
while they approve of the vote of the Senators of 
this State" on the treaty, "they in no wise censure 
the motives which influenced him in his [Washing- 
ton's] conduct thereupon." 2 

The word "wisdom" was carefully left out. Mar- 
shall, Lee, and the other Federalists struggled hard 
to defeat this obnoxious amendment; but the Re- 
publicans overwhelmed them by a majority of 33 
out of a total of 145 voting, Marshall, of course, 
casting his vote against it. 3 

In worse plight than ever, Washington's friends 
moved to amend the Republican amendment by re- 
solving: "That the President of the United States, 
for his great abilities, wisdom, and integrity, merits 

1 The italics are mine. "The word 'wisdom' in expressing the con- 
fidence of the House in the P.[resident] was so artfully introduced that 
if the fraudulent design had not been detected in time the vote of the 
House, as to its effect upon the P. would have been entirely done away. 
... A resolution so worded as to acquit the P. of all evil intention, 
but at the same time silently censuring his error, was passed by a ma- 
jority of 33." (Letter of Jefferson's son-in-law, enclosed by Jefferson 
to Madison; Works: Ford, viii, footnote to 198.) 

2 Journal, H.D. (Nov. 21, 1795), 29. 3 76. 



WASHINGTON'S DEFENDER 139 

and possesses the undiminished confidence of this 
House." But even this, which omitted all reference 
to the treaty and merely expressed confidence in 
Washington's "abilities, wisdom, and integrity," 
was beaten by a majority of 20 out of a total of 
138 voting. 1 

As soon as Jefferson got word of Marshall's sup- 
port of Washington's Administration in the Legisla- 
ture, he poured out his dislike which had long been 
distilling: — 

"Though Marshall will be able to embarras [sic] 
the republican party in the assembly a good deal," 
wrote Jefferson to Madison, "yet upon the whole 
his having gone into it will be of service. He has 
been, hitherto, able to do more mischief acting 
under the mask of Republicanism than he will be 
able to do after throwing it plainly off. His lax 
lounging manners have made him popular with the 
bulk of the people of Richmond; & a profound 
hypocrisy, with many thinking men of our country. 
But having come forth in the plenitude of his Eng- 
lish principles the latter will see that it is high time 
to make him known." 2 

Such was Jefferson's inability to brook any oppo- 
sition, and his readiness to ascribe improper motives 
to any one having views different from his own. So 
far from Marshall's having cloaked his opinions, he 
had been and was imprudently outspoken in avowing 
them. Frankness was as much a part of Marshall's 
mental make-up as his "lax, lounging manners" 

1 Journal, H.D. (Nov. 21, 1795), 29. 

2 Jefferson to Madison, Nov. 26, 1735; Works: Ford, viii, 197-98. 



140 JOHN MARSHALL 

were a part of his physical characteristics. Of all 
the men of the period, not one was cleaner of hypoc- 
risy than he. From Patrick Henry in his early life 
onward to his associates on the bench at the end 
of his days the testimony as to Marshall's open- 
mindedness is uniform and unbroken. 

With the possible exception of Giles and Roane, 
Jefferson appears to have been the only man who 
even so much as hinted at hypocrisy in Marshall. 
Although strongly opposing his views and suggest- 
ing the influence of supposed business connections, 
Madison had supreme confidence in Marshall's in- 
tegrity of mind and character. So had Monroe. 
Even Jefferson's most panegyrical biographer de- 
clares Marshal] to have been "an earnest and sincere 
man." l 

The House of Delegates having refused to approve 
Washington, even indirectly, the matter went to 
the State Senate. There for a week Washington's 
friends fought hard and made a slight gain. The 
Senate struck out the House resolution and inserted 
instead: "The General Assembly entertain the high- 
est sense of the integrity, patriotism and wisdom of 
the President of the United States, and in approving 
the vote of the Senators of the State in the Congress 
of the United States, relative to the treaty with 
Great Britain, they in no wise mean to censure the 
motives which influenced him in his conduct there- 
upon." To this the House agreed, although by a 
slender majority, Marshall, of course, voting for 
the Senate amendment. 2 

1 Randall, ii, 36. 2 Journal, H.D. (1795), 72. 



WASHINGTON'S DEFENDER 141 

During this session Marshall was, as usual, on the 
principal standing committees and did his accus- 
tomed share of general legislative work. He was 
made chairman of a special committee to bring in 
a bill "authorizing one or more branches of the bank 
of the United States in this commonwealth"; 1 and 
later presented the bill, 2 which finally passed, Decem- 
ber 8, 1795, though not without resistance, 38 votes 
being cast against it. 3 

But the Republicans had not yet finished with the 
Jay Treaty or with its author. On December 12, 
1795, they offered a resolution instructing Virginia's 
Senators and Representatives in Congress to at- 
tempt to secure amendments to the Constitution pro- 
viding that: "Treaties containing stipulations upon 
the subject of powers vested in Congress shall be 
approved by the House of Representatives"; that 
"a tribunal other than the Senate be instituted for 
trying impeachments"; that "Senators shall be 
chosen for three years"; and that "U.S. Judges 
shall hold no other appointments." 4 

The Federalists moved to postpone this resolu- 
tion until the following year "and print and dis- 
tribute proposed amendments for the consideration 
of the people"; but they were beaten by a majority 
of 11 out of a total vote of 129, Marshall voting for 
the resolution. The instruction to secure these radi- 
cal constitutional changes then passed the House by 
a majority of 56 out of a total vote of 120, Marshall 
voting against it. 6 

1 Journal, H.D. (1795), 50. 2 lb., 53. 

8 lb., 79. 4 lb., 90. 6 lb., 91-92. 



142 JOHN MARSHALL 

Marshall's brother-in-law, United States Marshal 
Carrington, had a hard time explaining to Washing- 
ton his previous enthusiasm. He writes: " The active 
powers of the [Republican] party . . . unveiled them- 
selves, & carried in the House some points very ex- 
traordinary indeed, manifesting disrespect towards 
you." But, he continues, when the Virginia Senate 
reversed the House, "the zealots of Anarchy were 
backward to act . . . while the friends of Order were 
satisfied to let it [the Virginia Senate amendment] 
remain for farther effects of reflection"; and later 
succeeded in carrying it. 

"The fever has raged, come to its crisis, and is 
abating." Proof of this, argued Carrington, was 
the failure of the Republicans to get signatures to 
"some seditious petitions [against the Jay Treaty] 
which was sent in vast numbers from Philadelphia" 
and which "were at first patronized with great zeal 
by many of our distinguished anarchists; but . . . 
very few copies will be sent to Congress fully 
signed." * 

Never was appointive officer so oblivious of facts 
in his reports to his superior, as was Carrington. 
Before adjournment on December 12, 1795, the Leg- 
islature adopted part of the resolution which had 
been offered in the morning: "No treaty containing 
any stipulation upon the subject of powers vested 
in Congress by the eighth section of the first article 
[of the Constitution] shall become the Supreme law 
of the land until it shall have been approved in 
those particulars by a majority in the House of 

1 Carrington to Washington, Dec. 6, 1795; MS., Lib. Cong. 



WASHINGTON'S DEFENDER 143 

Representatives; and that the President, before he 
shall ratify any treaty, shall submit the same to 
the House of Representatives." 1 

Carrington ignored or failed to understand this 
amazing resolution of the Legislature of Virginia; 
for nearly three months later he again sought to 
solace Washington by encouraging reports. "The 
public mind in Virginia was never more tranquil than 
at present. The fever of the late session of our as- 
sembly, had not been communicated to the Coun- 
try. . . . The people do not approve of the violent 
and petulant measures of the Assembly, because, in 
several instances, public meetings have declared a 
decided disapprobation." In fact, wrote Carrington, 
Virginia's "hostility to the treaty has been exag- 
gerated." Proof "of the mass of the people being 
less violent than was asserted" would be discovered 
"in the failure of our Zealots in getting their signa- 
tures to certain printed papers, sent through the 
Country almost by Horse loads, as copies of a pe- 
tition to Congress on the subject of the Treaty." 2 
But a few short months would show how rose-colored 
were the spectacles which Mr. Carrington wore 
when he wrote this reassuring letter. 

The ratification of the British treaty; the rage 
against England; and the devotion to France which 
already had made the Republican a French party; 
the resentment of the tri-color Republic toward the 
American Government — all forged a new and des- 
perate menace. It was, indeed, Scylla or Charybdis, 

1 Journal, H.D. (Dec. 12, 1795), 91-92. 

3 Carrington to Washington, Feb. 24, 1796; MS., Lib. Cong. 



144 JOHN MARSHALL 

as Washington had foreseen, and bluntly stated, that 
confronted the National Government. War with 
France now seemed the rock on which events were 
driving the hard-pressed Administration — war for 
France or war from France. 

The partisan and simple-minded Monroe had been 
recalled from his diplomatic post at Paris. The 
French mission, which at the close of our Revolu- 
tion was not a place of serious moment, 1 now be- 
came critically — vitally — important. Level must 
be the head and stout the heart of him who should 
be sent to deal with that sensitive, proud, and now 
violent country. Lee thus advises the President: 
"No person would be better fitted than John Mar- 
shall to go to France for supplying the place of our 
minister; but it is scarcely short of absolute cer- 
tainty that he would not accept any such 06106." 2 

But Washington's letter was already on the way, 
asking Marshall to undertake this delicate task : — ■ 

"In confidence I inform you," wrote Washington 
to Marshall, "that it has become indispensably nec- 
essary to recall our minister at Paris & to send one 
in his place, who will explain faithfully the views of 
this government & ascertain those of France. 

" Nothing would be more pleasing to me than that 
you should be this organ, if it were only for a tem- 
porary absence of a few months; but it being feared 
that even this could not be made to comport with 
your present pursuits, I have in order that as little 
delay as possible may be incurred put the enclosed 

1 Dodd, 39. 

2 Lee to Washington, July 7, 1796; V/ritings: Sparks, xi, 487. 



WASHINGTON'S DEFENDER 145 

letter [to Charles Cotesworth Pinckney] under cover 
to be forwarded to its address, if you decline the 
present offer or to be returned to me if you accept 
it. Your own correct knowledge of circumstances 
renders details unnecessary." * 

Marshall at once declined this now high distinc- 
tion and weighty service, as he had already refused 
the United States district attorneyship and a place 
in Washington's Cabinet. Without a moment's de- 
lay, he wrote the President : — 

"I will not attempt to express those sensations 
which your letter of the 8th instant has increased. 
Was it possible for me in the present crisis of my af- 
fairs to leave the United States, such is my convic- 
tion of the importance of that duty which you would 
confide to me, &, pardon me if I add, of the fidel- 
ity with which I shoud attempt to perform it, that 
I woud certainly forego any consideration not de- 
cisive with respect to my future fortunes, & woud 
surmount that just diffidence I have entertain d of 
myself, to make one effort to convey truly & faith- 
fully to the government of France those sentiments 
which I have ever believed to be entertained by that 
of the United States. 

"I have forwarded your letter to Mr. Pinckney. 
The recall of our minister at Paris has been conjec- 
tured while its probable necessity has been regretted 
by those who love more than all others, our own 
country. I will certainly do myself the honor of 
waiting on you at Mt. Vernon." 2 

1 Washington to Marshall, July 8, 1796; Washington MSS., Lib, 
Cong. 

2 Marshall to Washington, July 11, 1796; ib. 



146 JOHN MARSHALL 

Washington, although anticipating Marshall's 
refusal of the French mission, promptly answered: 
" I . . . regret that present circumstances should de- 
prive our Country of the services, which, I am 
confident, your going to France would have ren- 
dered it"; and Washington asks Marshall's opinion 
on the proper person to appoint to the office of 
Surveyor-General. l 

The President's letter, offering the French post to 
Pinckney, was lost in the mails; and the President 
wrote Marshall about it, because it also enclosed a 
note "containing three bank bills for one hundred 
dollars each for the sufferers by fire in Charlestown." 2 
In answer, Marshall indulged in a flash of humor, 
even at Washington's expense. "Your letter to 
General Pinckney was delivered by myself to the 
post master on the night on which I received it and 
was, as he says, immediately forwarded by him. 
Its loss is the more remarkable, as it could not have 
been opened from a hope that it contained bank 
notes." He also expressed his gratification "that 
a gentleman of General Pinckney's character will 
represent our government at the court of France." 3 

The office of Secretary of State now became va- 
cant, under circumstances apparently forbidding. 
The interception of Fauchet's 4 famous dispatch 
number 10 5 had been fatal to Randolph. The French 

1 Washington to Marshall, July 15, 1796; Washington's Private 
Letter Book; MS., Lib. Cong. 

2 Washington to Marshall, Oct. 10, 1796; ib. 

3 Marshall to Washington, Oct. 12, 1796; Washington MSS , Lib. 
Cong. 

4 Genet's successor as French Minister to the United States. 
6 Interesting State Papers, 48 e t seq. 



WASHINGTON'S DEFENDER 147 

Minister, in this communication to his Government, 
portrays a frightful state of corrupt public thinking 
in America; ascribes this to the measures of Wash- 
ington's Administration; avows that a revolution is 
imminent; declares that powerful men, "all having 
without doubt" Randolph at their head, are balanc- 
ing to decide on their party; asserts that Randolph 
approached him with suggestions for money; and 
concludes : — 

"Thus with some thousands of dollars the [French] 
republic could have decided on civil war or on peace 
[in America] ! Thus the consciences of the pretended 
patriots of America have already their prices! . . . 
W 7 hat will be the old age of this [American] govern- 
ment, if it is thus early decrepid!" x 

The discovery of this dispatch of the French 
Minister destroyed Randolph politically. Wash- 
ington immediately forced his resignation. 2 

The President had great difficulty in finding a suit- 
able successor to the deposed Secretary of State. He 
tendered the office to five men, all of whom declined. 3 
"What am I to do for a Secretary of State? " he asks 
Hamilton; and after recounting his fruitless efforts 
to fill that office the President adds that "Mr. Mar- 
shall, of Virginia, has declined the office of Attorney 
General, and I am pretty certain, would accept of 

1 Interesting State Papers, 55. 

2 For able defense of Randolph see Conway, chap, xxiii; but contra, 
see Gibbs, i, chap. ix. 

3 Patterson of New Jersey, Johnson of Maryland, C. C. Pinckney 
of South Carolina, Patrick Henry of Virginia, and Rufus King of New 
York. (Washington to Hamilton, Oct. 29, 1795; Writings: Ford, xiii, 
129-30.) King declined because of the abuse heaped upon public 
officers. (Hamilton to Washington, Nov. 5, 1795; ib., footnote to 130.) 



148 JOHN MARSHALL 

no other." 1 It is thus made clear that Washington 
would have made Marshall the head of his Cabinet 
in 1795 but for the certainty that his Virginia 
champion would refuse the place, as he had de- 
clined other posts of honor and power. 

Hardly had the Virginia Legislature adjourned 
when the conflict over the treaty was renewed in 
Congress. The Republicans had captured the House 
of Representatives and were full of fight. They 
worked the mechanism of public meetings and peti- 
tions to its utmost. On March 7 the House plunged 
into a swirl of debate over the British treaty; time 
and again it seemed as though the House would 
strangle the compact by withholding appropriations 
to make it effective. 2 If the treaty was to be 
saved, all possible pressure must be brought to 
bear on Congress. So the Federalists took a leaf 
out of the book of Republican tactics, and got up 
meetings wherever they could to petition Congress 
to grant the necessary money. 

In Virginia, as elsewhere, the merchants were the 
principal force in arranging these meetings. 3 As 
we have seen, the business and financial interests 
had from the first been the stanchest supporters 
of Washington's Administration.. "The commercial 
and monied people are zealously attached to" and 
support the Government, wrote Wolcott in 1791. 4 
And now Hamilton advised King that "men of busi- 

1 Washington to Hamilton, Oct. 29, 1795; Writings: Ford, xiii, 
131. 

2 For debate see Annals, 4th Cong., 1st Sess., 423-1291. 

8 Carrington to Washington, May 9, 1796; MS., Lib. Cong. 
a Oliver Wolcott to his father, Feb. 12, 1791; Gibbs, i, 62. 



WASHINGTON'S DEFENDER 149 

ness of all descriptions" thought the defeat of the 
treaty "would greatly shock and stagnate pecuniary 
plans and operations in general." 1 Indeed, the one 
virtue of the treaty, aside from its greatest purpose, 
that of avoiding war, was that it prevented the col- 
lapse of credit and the wreck of Hamilton's financial 
system. 

Washington, with the deceptive hopefulness of 
responsibility, had, even when it seemed that the 
people were as one man against the treaty, "doubted 
much whether the great body of the yeomanry 
have formed any opinions on the subject." 2 The 
Federalist meetings were designed to show that 
the "yeomanry," having been "educated," had at 
last made up its mind in favor of Washington's 
policy. 

Marshall and Carrington arranged for the Rich- 
mond gathering. "The disorganizing machinations of 
a faction [Republicans]," reported the busy United 
States Marshal, "are no longer left to be nourished 
and inculcated on the minds of the credulous by 
clamorous demagogues, while the great mass of 
citizens, viewing these, as evils at a distance, re- 
main inactive. . . . All who are attached to peace 
and order, . . . will now come forward and speak for 
themselves. ... A meeting of the people of this city 
will take place on Monday next" to petition the 
National House of Representatives to support the 
treaty. So Carrington advised the President; and 
the same thing, said he, was to be done "exten- 

1 Hamilton to King, June 20, 1795; Works: Lodge, x, 103. 

8 Washington to Knox, Sept. 20, 1795; Writings: Ford, xiii, 105-06. 



150 JOHN MARSHALL 

sively" by "public meetings and Petitions through- 
out Virginia." 1 

Washington was expecting great results from the 
Richmond demonstration. "It would give me and 
. . . every friend to order and good government 
throughout the United States very great satisfac- 
tion," he wrote to encourage the Virginia Federal- 
ists; "more so than similar sentiments from any 
other State in the Union; for people living at a dis- 
tance from it [Virginia] know not how to believe 
it possible" that the Virginia Legislature and her 
Senators and Representatives in Congress should 
speak and act as they had done. 2 "It is," phil- 
osophized Washington, "on great occasions only and 
after time has been given for cool and deliberate 
reflection that the real voice of the people can be 
known. The present ... is one of those great 
occasions, than which none more important has 
occurred, or probably may occur again to call forth 
their decision." 3 

By such inspiration and management the historic 
Federalist gathering was brought about at Rich- 
mond on April 25, 1796, where the "Marshall elo- 
quence" was to do its utmost to convert a riotously 
hostile sentiment into approval of this famous 
treaty and of the Administration which was respon- 
sible for it. All day the meeting lasted. Marshall 
put forth his whole strength. At last a "decided 
majority" adopted a favorable resolution drawn by 

1 Carrington to the President, April 22, 1796; Writings: Ford, xiii, 
footnote to 185. 

2 Washington to Carrington, May 1, 1796; ib., 185. 

3 lb., 186. 



WASHINGTON'S DEFENDER 151 

an "original opponent" of the treaty. Thus were 
sweetened the bitter resolutions adopted by these 
same freeholders of Richmond some months before, 
which had so angered Washington. 

The accounts of this all-day public discussion 
are as opposite as were the prejudices and interests 
of the narrators. Justice Story tells us that Mar- 
shall's speech was "masterly," the majority for the 
resolution "flattering," and the assemblage itself 
made up of the "same citizens" who formerly had 
"denounced" the treaty. 1 But there was present at 
the meeting an onlooker who gives a different ver- 
sion. Randolph, who, in disgrace, was then sweating 
venom from every pore, thus reports to Madison 
at the end of the hard-fought day: — 

"Between 3 & 400 persons were present; a large 
proportion of whom were British merchants, some 
of whom pay for the British purchases of horses — 
their clerks — officers, who have held posts under 
the President at his will, — stockholders — expec- 
tants of office — and many without the shadow of 
a freehold. 2 Notwithstanding this, the numbers on 
the republican side, tho' inferior, were inferior in a 
small degree only ; and it is believed on good grounds 
that the majority of free-holders were on the side 
of the house of representatives [against the treaty]. 

"Campbell 3 and Marshall the principal combat- 
ants [word illegible] as you know without being 

1 Story, in Dillon, iii, 352. 

2 Senator Stephen Thompson Mason wrote privately to Tazewell 
that the Fairfax purchasers and British merchants were the only 
friends of the treaty in Virginia. (Anderson, 42.) 

3 Alexander Campbell. (See infra, chap, v.) 



152 JOHN MARSHALL 

told. Marshall's argument was inconsistent, and 
shifting; concluding every third sentence with the 
horrors of war. Campbell spoke elegantly and 
forcibly; and threw ridicule and absurdity upon his 
antagonist with success. Mr. Clofton [Clopton, mem- 
ber of Congress from Richmond] will receive two 
papers; one signed by the treaty men, many of 
whom he will know to have neither interest nor feel- 
ing in common with the citizens of Virginia, and 
to have been transplanted hither from England or 
Caledonia since the war, interspersed pretty consid- 
erably with fugitive tories who have returned under 
the amnesty of peace. 

"The notice, which I sent you the other day," 
he goes on to say, "spoke of instructions and a 
petition; but Marshall, suspecting that he would be 
outnumbered by freeholders, and conscious that 
none should instruct those who elect, quitted the 
idea of instruction, and betook himself to a petition, 
in which he said all the inhabitants of Richmond, 
though not freeholders, might join. Upon which 
Campbell gave notice, that it would be published 
that he (Marshall) declined hazarding the ques- 
tion on the true sense of the country. Very few of 
the people [freeholders] of the county were present; 
but three-fourths of those who were present voted 
with Campbell. Dr. Foushee was extremely active 
and influential." * 

Marshall, on the contrary, painted in rich colors 
his picture of this town-hall contest. He thus reports 

1 Randolph to Madison, Richmond, April 25, 1796; Conway, 362. 
Only freeholders could vote. 



WASHINGTON'S DEFENDER 153 

to Hamilton: "I had been informed of the tem- 
per of the House of Representatives and we [Rich- 
mond Federalists] had promptly taken such measures 
as appeared to us fitted to the occasion. We could 
not venture an expression of the public mind under 
the violent prejudices with which it has been im- 
pressed, so long as a hope remained, that the House 
of Representatives might ultimately consult the 
interest or honor of the nation. . . . But now, when 
all hope of this has vanished, it was deemed advis- 
able to make the experiment, however hazardous 
it might be. 

"A meeting was called," continues Marshall, 
"which w T as more numerous than I have ever seen 
at this place ; and after a very ardent and zealous dis- 
cussion which consumed the day, a decided major- 
ity declared in favor of a resolution that the wellfare 
and honor of the nation required us to give full 
effect to the treaty negotiated with Britain. This 
resolution, with a petition drawn by an original op- 
ponent of the treaty, will be forwarded by the next 
post to Congress." 1 

The resolution which Marshall's speech caused an 
"original opponent" 2 of the treaty to draw was 
"that the Peace, Happiness, & W T ellfare, not less 
than the National Honor of the United States, de- 
pend in a great degree upon giving, with good faith, 
Full effect to the Treaty lately negotiated with 
Great Britain." The same newspaper that printed 
this resolution, in another account of the meeting 

1 Marshall to Hamilton, April 25, 1796; Works: Hamilton, vi, 109. 
5 Author unknown. 



154 JOHN MARSHALL 

"which was held at the instance of some friends of 
the British Treaty," says that "in opposition to 
that resolution a vast number of the meeting" sub- 
scribed to counter-declarations which "are now 
circulated throughout this City and the county of 
Henrico for the subscription of all those who" are 
opposed to the treaty. 1 Even the exultant Carring- 
ton reported "that the enemies of the Treaty or 
rather of the Government, are putting in practice 
every part and effort to obtain subscriptions to a 
counteracting paper." 

Carrington denounced the unfavorable newspaper 
account as "a most absolute falsehood." He tells 
Washington that the opposition resolution "was not 
even listened [to] in the meeting." But still he is 
very apprehensive — he beholds the politician's 
customary "crisis" and strives to make the people 
see it: "There never was a crisis at which the 
activity of the Friends of Government was more 
urgently called for — some of us here have en- 
deavored to make this impression in different parts 
of the Country." 2 The newspaper reported that 
the Federalists had induced "school boys & appren- 
tices" to sign the petition in favor of the treaty; 
Carrington adds a postscript stating that this was, 
"I believe, a little incorrect." 

Marshall foresaw that the Republicans would 
make this accusation and hastened to anticipate it 
by advancing the same charge against his opponents. 
The Republicans, says Marshall, secured the signa- 

1 Richmond and Manchester Advertiser, April 27, 1796. 

3 Carrington to the President, April 27, 1796; MS., Lib. Cong. 



WASHINGTON'S DEFENDER 155 

tures to their petition not only "of many respect- 
able persons but of still a greater number of mere 
boys. . . . Altho' some caution has been used by us 
in excluding those who might not be considered as 
authorized to vote," yet, Marshall advises King, 
"they [Republicans] will not fail to charge us with 
having collected a number of names belonging to 
foreigners and to persons having no property in 
the place. The charge is as far untrue," asserts 
Marshall, "as has perhaps ever happened on any 
occasion of the sort. We could, by resorting to 
that measure, have doubled our list of petition- 
ers." And he adds that "the ruling party [Repub- 
lican] of Virginia are extremely irritated at the 
vote of to-day, and will spare no exertion to 
obtain a majority in other counties. Even here 
they will affect to have the greater number of 
freeholders." x 

It was in this wise that petitions favorable to the 
Jay Treaty and to Washington were procured in 
the President's own State. It was thus that the re- 
mainder of the country was assured that the Ad- 
ministration was not without support among the 
people of Virginia. Unsuspected and wholly unfore- 
seen was the influence on Marshall's future which 
his ardent championship of this despised treaty was 
to exercise. 

The Federalists were wise to follow the Republican 
practice of petition to Congress; for, "nothing . . . 
but the torrent of petitions and remonstrances . . . 
would have produced a division (fifty-one to forty- 

1 Marshall to King, April 25, 1796; King, ii, 45-46. 



156 JOHN MARSHALL 

eight) in favor of the appropriation." 1 So great was 
the joy of the commercial classes that in Philadel- 
phia, the financial heart of the country, a holiday 
was celebrated when the House voted the money. 2 

Marshall's activity, skill, courage, ability, and 
determination in the Legislature and before the 
people at this critical hour lifted him higher than 
ever, not only in the regard of Washington, but in 
the opinion of the Federalist leaders throughout 
the country. 3 They were casting about for a 
successor to Washington who could be most easily 
elected. The Hamiltonian Federalists were already 
distrustful of Adams for the presidency, and, even 
then, were warily searching for some other candi- 
date. Why not Patrick Henry? Great changes had 
occurred in the old patriot's mind and manner of 
thinking. He was now a man of wealth and had 
come to lean strongly toward the Government. His 
friendship for Washington, Marshall, and other Vir- 
ginia Federalists had grown; while for Jefferson and 
other Virginia Republicans it had turned to dislike. 
Still, with Henry's lifelong record, the Federalists 
could not be sure of him. 

To Marshall's cautious hands the Federalist lead- 
ers committed the delicate business of sounding 
Henry. King of New York had written Marshall on 
the subject. "Having never been in habits of cor- 
respondence with Mr. H.[enry]," replies Marshall, 

1 Washington to Thomas Pinckney, May 22, 1796; Writings: Ford, 
xiii, 208. 

2 Robert Morris to James M. Marshall, May 1, 1796; Morris's 
Private Letter Book; MS., Lib. Cong. 

8 Story, in Dillon, iii, 350. 



WASHINGTON'S DEFENDER 157 

"I cou'd not by letter ask from him a decision on the 
proposition I was requested to make him without 
giving him at the same time a full statement of the 
whole conversation & of the persons with whom that 
conversation was held." Marshall did not think 
this wise, for "I am not positively certain what 
course that Gentleman might take. The proposi- 
tion might not only have been rejected but men- 
tioned publickly to others in such manner as to have 
become an unpleasant circumstance." 

A prudent man was Marshall. He thought that 
Lee, who "corresponds familiarly with Mr. H. & is 
in the habit of proposing offices to him," was the 
man to do the work; and he asked Lee "to sound Mr. 
H. as from himself or in such manner as might in any 
event be perfectly safe." Lee did so, but got no 
answer. However, writes Marshall, "Mr. H.fenry] 
will be in Richmond on the 22 d of May. I can then 
sound him myself & if I find him (as I suspect I 
shall) totally unwilling to engage in the contest, I 
can stop where prudence may direct. I trust it will 
not then be too late to bring forward to public view 
Mr. H. or any other gentleman who may be thought 
of in his stead. Shou'd anything occur to render it 
improper to have any communication with M r H. on 
this subject, or shou'd you wish the communication 
to take any particular shape you will be so obliging 
as to drop me a line concerning it." 1 

1 Marshall to King, April 19, 1796; Hamilton MSS., Lib. Cong. Ham- 
ilton, it seems, had also asked Marshall to make overtures to Patrick 
Henry for the Presidency. (King, ii, footnote to 46.) But no corre- 
spondence between Hamilton and Marshall upon this subject has been 
discovered. Marshall's correspondence about Henry was with King. 



158 JOHN MARSHALL 

Marshall finally saw Henry and at once wrote the 
New York lieutenant of Hamilton the result of the 
interview. "Mr. Henry has at length been sounded 
on the subject you communicated to my charge," 
Marshall advises King. "Gen! Lee and myself have 
each conversed with him on it, tho' without inform- 
ing him particularly of the persons who authorized 
the communication. He is unwilling to embark in 
the business. His unwillingness, I think, proceeds 
from an apprehension of the difficulties to be en- 
countered by those who shall fill high Executive 
offices." 1 

The autumn of 1796 was at hand. Washington's 
second term was closing in Republican cloudbursts 
and downpours of abuse of him. He was, said the 
Republicans, an aristocrat, a "monocrat," a miser, 
an oppressor of the many for the enrichment of the 
few. Nay, more! Washington was a thief, even a 
murderer, charged the Republicans. His personal 
habits were low and base, said these champions 
of purity. 2 Washington had not even been true 
to the cause of the Revolution, they declared; 
and to prove this, an ancient slander, supported 
by forged letters alleged to have been written by 
Washington during the war, was revived. 3 

Marshall, outraged and insulted by these assaults 
on the great American, the friend of his father and 
himself and the commander of the patriots who had, 

1 Marshall to King, May 24, 1796; King, ii, 48. 

2 For an accurate description of the unparalleled abuse of Wash- 
ington, see McMaster, ii, 249-50, 289-91, 302-06. 

3 Marshall, ii, 391-92. Also see Washington to Pickering, March 3* 
1797; Writings: Ford, xiii, 378-80; and to Gordon, Oct. 15; ib., 427. 



WASHINGTON'S DEFENDER 159 

by arms, won liberty and independence for the very 
men who were now befouling Washington's name, 
earnestly defended the President. Although his 
law practice and private business called for all his 
strength and time, Marshall, in order to serve the 
President more effectively, again stood for the Legis- 
lature, and again he was elected. 

In the Virginia House of Delegates, Marshall and 
the other friends of Washington took the initiative. 
On November 17, 1796, they carried a motion for an 
address to the President, declaratory of Virginia's 
"gratitude for the services of their most excellent 
fellow citizen"; who "has so wisely and prosper- 
ously administrated the national concerns." l But 
how should the address be worded? The Republi- 
cans controlled the committee to which the resolu- 
tion was referred. Two days later that body reported 
a cold and formal collection of sentences as Vir- 
ginia's address to Washington upon his leaving, ap- 
parently forever, the service of America. Even Lee, 
who headed the committee, could not secure a dec- 
laration that Washington was or had been wise. 

This stiff "address" to Washington, reported by 
the committee, left out the word "wisdom." Com- 
mendation of Washington's conduct of the Govern- 
ment was carefully omitted. Should his friends sub- 
mit to this? No! Better to be beaten in a manly 
contest. Marshall and the other supporters of the 
President resolved to try for a warmer expression. 
On December 10, they introduced a substitute 
declaring that, if Washington had not declined, the 

1 Journal, H.D. (1796), 4G-47; MS. Archives, Va. St. Lib. 



160 JOHN MARSHALL 

people would have reelected him ; that his whole life 
had been "strongly marked by wisdom, valor, and 
patriotism"; that "posterity to the most remote 
generations and the friends of true and genuine 
liberty and of the rights of man throughout the 
world, and in all succeeding ages, will unite" in ac- 
claiming " that you have never ceased to deserve 
well of your country " ; that Washington's " valor 
and wisdom . . . had essentially contributed to es- 
tablish and maintain the happiness and prosperity 
of the nation." 1 

But the Republicans would have none of it. After 
an acrid debate and in spite of personal appeals made 
to the members of the House, the substitute was de- 
feated by a majority of three votes. John Marshall 
was the busiest and most persistent of Washington's 
friends, and of course voted for the substitute, 2 
which, almost certainly, he drew. Cold as was the 
original address which the Federalists had failed to 
amend, the Republicans now made it still more 
frigid. They would not admit that Washington de- 
served well of the whole country. They moved to 
strike out the word "country" and in lieu thereof 
insert "native state." 3 

Many years afterward Marshall told Justice Story 
his recollection of this bitter fight: "In the session 
of 1796 . . . which," said Marshall, "called forth all 

1 Journal, H.D. (1796), 153; MS. Archives, Va. St. Lib. 2 Ik 
3 lb. This amendment is historically important for another reason. 
It is the first time that the Virginia Legislature refers to that Com- 
monwealth as a "State" in contra-distinction to the country. Al- 
though the Journal shows that this important motion was passed, the 
manuscript draft of the resolution signed by the presiding officer of 
both Houses does not show the change. (MS. Archives, Va. St. Lib.) 



WASHINGTON'S DEFENDER 161 

the strength and violence of party, some Federalist 
moved a resolution expressing the high confidence of 
the House in the virtue, patriotism, and wisdom of 
the President of the United States. A motion was 
made to strike out the word wisdom. In the debate 
the whole course of the Administration was reviewed, 
and the whole talent of each party was brought into 
action. Will it be believed that the word was re- 
tained by a very small majority? A very small ma- 
jority in the legislature of Virginia acknowledged the 
wisdom of General Washington ! " l 

Dazed for a moment, the Federalists did not re- 
sist. But, their courage quickly returning, they 
moved a brief amendment of twenty words declar- 
ing that Washington's life had been "strongly 
marked by wisdom, in the cabinet, by valor, in the 
field, and by the purest patriotism in both." Futile 
effort ! The Republicans would not yield. By a ma- 
jority of nine votes 2 they flatly declined to declare 
that Washington had been wise in council, brave in 
battle, or patriotic in either; and the original ad- 
dress, which, by these repeated refusals to endorse 
either Washington's sagacity, patriotism, or even 
courage, had now been made a dagger of ice, was sent 
to Washington as the final comment of his native 

1 Story, in Dillon, iii, 355. Marshall's account was inaccurate, as 
we have seen. His memory was confused as to the vote in the two 
contests (supra), a very natural thing after the lapse of twenty years. 
In the first contest the House of Delegates voted overwhelmingly 
against including the word "wisdom" in the resolutions; and on the 
Senate amendment restored it by a dangerously small majority. On 
the second contest in 1796, when Marshall declares that Washington's 
friends won "by a very small majority," they were actually defeated. 

2 Journal, H.D., 153-90. 



162 JOHN MARSHALL 

State upon his lifetime of unbearable suffering and 
incalculable service to the Nation. 

Arctic as was this sentiment of the Virginia Re- 
publicans for Washington, it was tropical compared 
with the feeling of the Republican Party toward the 
old hero as he retired from the Presidency, On Mon- 
day, March 5, 1797, the day after Washington's 
second term expired, the principal Republican 
newspaper of America thus expressed the popular 
sentiment: — 

"'Lord, now lettest thou thy servant depart in 
peace, for mine eyes have seen thy salvation,' was 
the pious ejaculation of a man who beheld a flood of 
happiness rushing in upon mankind. . . . 

"If ever there was a time that would license the 
reiteration of the exclamation, that time is now ar- 
rived, for the man [Washington] who is the source 
of all the misfortunes of our country, is this day re- 
duced to a level with his fellow citizens, and is no 
longer possessed of power to multiply evils upon the 
United States. 

"If ever there was a period for rejoicing this is the 
moment — every heart, in unison with the freedom 
and happiness of the people ought to beat high with 
exultation, that the name of Washington from this 
day ceases to give a currency to political iniquity, 
and to legalize corruption. . . . 

"A new sera is now opening upon us, an sera which 
promises much to the people; for public measures 
must now stand upon their own merits, and nefarious 
projects can no longer be supported by a name. 

" When a retrospect is taken of the Washingtonian 



WASHINGTON'S DEFENDER 163 

administration for eight years, it is a subject of 
the greatest astonishment, that a single individual 
should have cankered the principles of republicanism 
in an enlightened people, just emerged from the 
guiph of despotism, and should have carried his de- 
signs against the public liberty so far as to have put 
in jeopardy its very existence. 

" Such however are the facts, and with these star- 
ing us in the face, this day ought to be a Jubilee 
in the United States." x 

Such was Washington's greeting from a great body 
of his fellow citizens when he resumed his private 
station among them after almost twenty years of 
labor for them in both war and peace. Here rational 
imagination must supply what record does not re- 
veal. W T hat must Marshall have thought? Was this 
the fruit of such sacrifice for the people's welfare as no 
other man in America and few in any land through- 
out all history had ever made — this rebuke of 
Washington — Washington, who had been the soul 
as well as the sword of the Revolution; Washington, 
who alone had saved the land from anarchy ; Wash- 
ington, whose level sense, far-seeing vision, and 
mighty character had so guided the newborn Gov- 
ernment that the American people had taken their 

1 Aurora, Monday, March 5, 1797. This paper, expressing Re- 
publican hatred of Washington, had long been assailing him. For 
instance, on October 24, 1795, a correspondent, in the course of a 
scandalous attack upon the President, said: "The consecrated ermine 
of Presidential chastity seems too foul for time itself to bleach." 
(See Cobbett, i, 411; and ib., 444, where the Aurora is represented 
as having said that "Washington has the ostentation of an eastern 
bashaw." ) From August to September the Aurora had accused Wash- 
ington of peculation. (See "Calm Observer" in Aurora, Oct. 23 to 
Nov. 5, 1795.) 



164 JOHN MARSHALL 

place as a separate and independent Nation? Could 
any but this question have been asked by Marshall? 

He was not the only man to whom such reflec- 
tions came. Patrick Henry thus expressed his feel- 
ings: "I see with concern our old commander-in- 
chief most abusively treated — nor are his long and 
great services remembered. ... If he, whose char- 
acter as our leader during the whole war, was above 
all praise, is so roughly handled in his old age, what 
may be expected by men of the common standard 
of character? " l 

And Jefferson! Had he not become the voice of 
the majority? 

Great as he was, restrained as he had arduously 
schooled himself to be, Washington personally re- 
sented the brutal assaults upon his character with 
something of the fury of his unbridled youth: "I had 
no conception that parties would or even could go to 
the length I have been witness to; nor did I believe, 
until lately, that it was within the bounds of prob- 
ability — hardly within those of possibility — that 
. . . every act of my administration would be tor- 
tured and the grossest and most insidious misrepre- 
sentations of them be made . . . and that too in such 
exaggerated and indecent terms as could scarcely 
be applied to a Nero — a notorious defaulter — or 
even to a common pickpocket." 2 

1 Henry to his daughter, Aug. 20, 1796; Henry, ii, 569-70. Henry 
was now an enemy of Jefferson and his dislike was heartily recipro- 
cated. 

2 Washington to Jefferson, July 6, 1796; Writings: Ford, xiii, 230- 
31. This letter is in answer to a letter from Jefferson denying re- 
sponsibility for the publication of a Cabinet paper in the Aurora. 
(Jefferson to Washington, June 19, 1796; Works: Ford, viii, 245; and 



WASHINGTON'S DEFENDER 165 

Here, then, once more, we clearly trace the devel- 
opment of that antipathy between Marshall and 
Jefferson, the seeds of which were sown in those 
desolating years from 1776 to 1780, and in the not 
less trying period from the close of the Revolution 
to the end of Washington's Administration. Thus 
does circumstance mould opinion and career far 
more than abstract thinking; and emotion quite as 
much as reason shape systems of government. The 
personal feud between Marshall and Jefferson, 
growing through the years and nourished by events, 
gave force and speed to their progress along high- 
ways which, starting at the same point, gradually 
diverged and finally ran in opposite directions. 

see Marshall, ii, 390-91.) Even in Congress Washington did not 
escape. In the debate over the last address of the National Legisla- 
ture to the President, Giles of Virginia declared that Washington had 
been "neither wise nor firm." He did not think "so much of the Presi- 
dent." He "wished him to retire . . . the government of the United 
States could go on very well without him." (Annals, 4th Cong., 
2d Sess. (Dec. 14, 1796), 1614-18.) On the three roll-calls and passage 
of the address Giles voted against Washington. (lb., 1666-68.) So 
did Andrew Jackson, a new member from Tennessee. (lb.) 

The unpopularity of Washington's Administration led to the hos- 
tile policy of Bache's paper, largely as a matter of business. This 
provident editor became fiercely " Republican " because, as he ex- 
plained to his relative, Temple Franklin, in England, he " could not 
[otherwise] maintain his family," and " he had determined to adopt a 
bold experiment and to come out openly against the Administration, 
He thought the public temper would bear it." (Marshall to Pick- 
ering, Feb. 28, 1811, relating the statement of Temple Franklin to 
James M. Marshall while in England in 1793.) 



CHAPTER V 

THE MAN AND THE LAWYER 

Tall, meagre, emaciated, his muscles relaxed, his joints loosely connected, 
his head small, his complexion swarthy, his countenance expressing great good 
humor and hilarity. (William Wirt.) 

Mr. Marshall can hardly be regarded as a learned lawyer. (Gustavua 
Schmidt.) 

His head is one of the best organized of any I have known. (Rufus King.) 

On a pleasant summer morning when the cherries 
were ripe, a tall, ungainly man in early middle life 
sauntered along a Richmond street. His long legs 
were encased in knee breeches, stockings, and shoes 
of the period; and about his gaunt, bony frame hung 
a roundabout or short linen jacket. Plainly, he had 
paid little attention to his attire. He was bareheaded 
and his unkempt hair was tied behind in a queue. 
He carried his hat under his arm, and it was full of 
cherries which the owner was eating as he sauntered 
idly along. 1 Mr. Epps's hotel (The Eagle) faced the 
street along which this negligently appareled person 
was making his leisurely way. He greeted the land- 
lord as he approached, cracked a joke in passing, and 
rambled on in his unhurried walk. 

At the inn was an old gentleman from the country 
who had come to Richmond where a lawsuit, to which 
he was a party, was to be tried. The venerable liti- 
gant had a hundred dollars to pay to the lawyer who 
should conduct the case, a very large fee fo? those 

1 Southern Literary Messenger, 1836, ii, 181-91; also see Howe, 
2d6. 



THE MAN AND THE LAWYER 167 

days. Who was the best lawyer in Richmond, asked 
he of his host? "The man who just passed us, John 
Marshall by name," said the tavern-keeper. But 
the countryman would have none of Marshall. His 
appearance did not fill the old man's idea of a practi- 
tioner before the courts. He wanted, for his hundred 
dollars, a lawyer who looked like a lawyer. He 
would go to the court-room itself and there ask for 
further recommendation. But again he was told by 
the clerk of the court to retain Marshall, who, mean- 
while, had ambled into the court-room. 

But no ! This searcher for a legal champion would 
use his own judgment. Soon a venerable, dignified 
person, solemn of face, with black coat and powdered 
wig, entered the room. At once the planter retained 
him. The client remained in the court-room, it ap- 
pears, to listen to the lawyers in the other cases that 
were ahead of his own. Thus he heard the pompous 
advocate whom he had chosen; and then, in aston- 
ishment, listened to Marshall. 

The attorney of impressive appearance turned out 
to be so inferior to the eccentric-looking advocate 
that the planter went to Marshall, frankly told him 
the circumstances, and apologized. Explaining that 
he had but five dollars left, the troubled old farmer 
asked Marshall whether he would conduct his case 
for that amount. With a kindly jest about the power 
of a black coat and a powdered wig, Marshall good- 
naturedly accepted. 1 

1 Southern Literary Messenger, ii, 181-91; also Howe, 266. Appar- 
ently the older lawyer had been paid the one hundred dollars, for 
prepayment was customary in Virginia at the time. (See La Roche- 
foucauld, iii, 76.) This tale, fairly well authenticated, is so character- 



168 JOHN MARSHALL 

This not too highly colored story is justified by 
all reports of Marshall that have come down to us. 
It is some such picture that we must keep before us 
as we follow this astonishing man in the henceforth 
easy and giant, albeit accidental, strides of his great 
career. John Marshall, after he had become the 
leading lawyer of Virginia, and, indeed, throughout 
his life, was the simple, unaffected man whom the 
tale describes. Perhaps consciousness of his own 
strength contributed to his disregard of personal 
appearance and contempt for studied manners. For 
Marshall knew that he carried heavier guns than 
other men. "No one," says Story, who knew him 
long and intimately, "ever possessed a more entire 
sense of his own extraordinary talents . . . than he." 1 

Marshall's most careful contemporary observer, 
William Wirt, tells us that Marshall was "in his 
person, tall, meagre, emaciated; his muscles relaxed 
and his joints so loosely connected, as not only to 
disqualify him, apparently, for any vigorous exer- 
tion of body, but to destroy everything like elegance 
and harmony in his air and movements. 

"Indeed, in his whole appearance, and demeanour; 
dress, attitudes, gesture; sitting, standing, or walk- 
ing; he is as far removed from the idolized graces of 
lord Chesterfield, as any other gentleman on earth. 

"To continue the portrait; his head and face are 
small in proportion to his height; his complexion 
swarthy; the muscles of his face being relaxed; . . . 

istic of Marshall that it is important. It visualizes the man as he 
really was. (See Jefferson's reference, in his letter to Madison, to 
Marshall's "lax, lounging manners," supra, 139.) 
1 Story, in Dillon, iii, 363. 



THE MAN AND THE LAWYER 169 

his countenance has a faithful expression of great 
good humour and hilarity; while his black eyes — 
that unerring index — possess an irradiating spirit 
which proclaims the imperial powers of the mind that 
sits enthroned within. . . . 

"His voice is dry, and hard; his attitude, in his 
most effective orations, often extremely awkward; 
as it was not unusual for him to stand with his left 
foot in advance, while all his gesture proceeded from 
his right arm, and consisted merely in a vehement, 
perpendicular swing of it from about the elevation 
of his head to the bar, behind which he was accus- 
tomed to stand." l 

During all the years of clamorous happenings, from 
the great Virginia Convention of 1788 down to the 
beginning of Adams's Administration and in the 
midst of his own active part in the strenuous politics 
of the time, Marshall practiced his profession, al- 
though intermittently. However, during the critical 
three weeks of plot and plan, debate and oratory in 
the famous month of June, 1788, he managed to do 
some "law business": while Virginia's Constitu- 
tional Convention was in session, he received twenty 
fees, most of them of one and two pounds and the 
largest from "Col° W. Miles Cary 6.4." He drew 
a deed for his fellow member of the Convention, 
James Madison, while the Convention was in ses- 
sion, for which he charged his colleague one pound 
and four shillings. 

But there was no time for card-playing during this 
notable month and no whist or backgammon en- 
1 Wirt: The British Spy, 110-12. 



170 JOHN MARSHALL 

tries appear in Marshall's Account Book. Earlier 
in the year we find such social expenses as "Card 
table 5.10 Cards 8/ paper 2/-6" and "expenses and 
loss at billiards at dif 1 times 3" (pounds). In 
September, 1788, occurs the first entry for profes- 
sional literature, "Law books 20/-1"; but a more 
important book purchase was that of "Mazai's book 
sur les etats unis * 18" (shillings), an entry which 
shows that some of Marshall's family could read 
French. 2 

Marshall's law practice during this pivotal year 
was fairly profitable. He thus sums up his earnings 
and outlay, "Rec^ 1 in the year 1788 1169.05; and ex- 
pended in year 1788, 515-13-7" which left Marshall 
more than 653 pounds or about $1960 Virginia cur- 
rency clear profit for the year. 3 

The following year (1789) he did a little better, his 
net profit being a trifle over seven hundred pounds, 
or about $2130 Virginia currency. In 1790 he earned 
a few shillings more than 1427 pounds and had about 
$2400 Virginia currency remaining, after paying all 
expenses. In 1791 he did not do so well, yet he 
cleared over $2200 Virginia currency. In 1792 his 
earnings fell off a good deal, yet he earned more than 
he expended, over 402 pounds (a little more than 
$1200 Virginia currency). 

In 1793 Marshall was slightly more successful, but 

1 Mazzei's Recherches sur les £tats-Unis, published in this year 
(1788) in four volumes. 

2 Marshall himself could not read French at this time. (See infra, 
chap, vi.) 

3 In this chapter of Marshall's receipts and expenditures all itemf 
are from his Account Book, described in vol. I, chap, v, of this work* 



THE MAN AND THE LAWYER 171 

his expenses also increased, and he ended this year 
with a trifle less than 400 pounds clear profit. He 
makes no summary in 1794, but his Account Book 
shows that he no more than held his own. This busi- 
ness barometer does not register beyond the end of 
1795, 1 and there is no further evidence than the gen- 
eral understanding current in Richmond as to the 
amount of his earnings after this date. La Roche- 
foucauld reported in 1797 that "Mr. Marshall does 
not, from his practice, derive above four or five 
thousand dollars per annum and not even that sum 
every year." 2 We may take this as a trustworthy 
estimate of Marshall's income; for the noble French 
traveler and student was thorough in his inquiries 
and took great pains to verify his statements. 

In 1789 Marshall bought the tract of land amount- 
ing to an entire city " square " of two acres, 3 on which, 
four years later, he built the comfortable brick resi- 
dence where he lived, while in Richmond, during the 
remainder of his life. This house still stands (1916) 
and is in excellent repair. It contains nine rooms, 
most of them commodious, and one of them of gen- 
erous dimensions where Marshall gave the "lawyer 
dinners" which, later, became so celebrated. This 
structure was one of a number of the important 
houses of Richmond. 4 Near by were the residences 
of Colonel Edward Carrington, Daniel Call, an ex- 

1 Marshall's third child, Mary, was born Sept. 17, of this year. 

8 La Rochefoucauld, iii, 75-76. 

8 Records, Henrico County, Virginia, Deed Book, iii, 74. 

4 In 1911 the City Council of Richmond presented this house to 
the Association for the Preservation of Virginia Antiquities, which now 
owns and occupies it. 



172 JOHN MARSHALL 

cellent lawyer, and George Fisher, a wealthy mer- 
chant; these men had married the three sisters of 
Marshall's wife. The house of Jacquelin Ambler was 
also one of this cluster of dwellings. So that Marshall 
was in daily association with four men to whom he 
was related by marriage, a not negligible circum- 
stance; for every one of them was a strong and suc- 
cessful man, and all of them were, like Marshall, 
pronounced Federalists. Their views and tastes were 
the same, they mutually aided and supported one 
another; and Marshall was, of course, the favorite 
of this unusual family group. 

In the same locality lived the Leighs, Wickhams, 
Ronalds, and others, who, with those just mentioned, 
formed the intellectual and social aristocracy of the 
little city. 1 Richmond grew rapidly during the first 
two decades that Marshall lived there. From the vil- 
lage of a few hundred people abiding in small wooden 
houses, in 1783, the Capital became, in 1795, a vigor- 
ous town of six thousand inhabitants, dwelling mostly 
in attractive brick residences. 2 This architectural 
transformation was occasioned by a fire which, in 
1787, destroyed most of the buildings in Richmond. 3 
Business kept pace with the growth of the city, 
wealth gradually and healthfully accumulated, and 
the comforts of life appeared. Marshall steadily 
wove his activities into those of the developing Vir- 
ginia metropolis and his prosperity increased in 
moderate and normal fashion. 

1 Mordecai, 63-70; and ib., chap. vii. 

2 La Rochefoucauld, iii, 63. Negroes made up one third of the 
population. 

3 lb., 64; also Christian, 30. 




JOHN MARSHALL'S HOUSE, RICHMOND 




THE LARGE ROOM WHERE THE FAMOUS 
WERE GIVEN 



LAWYERS' DINNERS 



THE MAN AND THE LAWYER 173 

In his personal business affairs Marshall showed 
a childlike faith in human nature which sometimes 
worked to his disadvantage. For instance, in 1790 
he bought a considerable tract of land in Bucking- 
ham County, which was heavily encumbered by a 
deed of trust to secure "a debt of a former owner" 
of the land to Caron de Beaumarchais. 1 Marshall 
knew of this mortgage "at the time of the purchase, 
but he felt no concern . . . because" the seller ver- 
bally "promised to pay the debt and relieve the land 
from the incumbrance." 

So he made the payments through a series of 
years, in spite of the fact that Beaumarchais's mort- 
gage remained unsatisfied, that Marshall urged its 
discharge, and, finally, that disputes concerning it 
arose. Perhaps the fact that he was the attorney 
of the Frenchman in important litigation quieted 
apprehension. Beaumarchais having died, his agent, 
unable to collect the debt, was about to sell the land 
under the trust deed, unless Marshall would pay the 
obligation it secured. Thus, thirteen years after 
this improvident transaction, Marshall was forced 
to take the absurd tangle into a court of equity. 2 

But he was as careful of matters entrusted to 
him by others as this land transaction would suggest 

1 This celebrated French playwright and adventurer is soon to 
appear again at a dramatic moment of Marshall's life. (See infra, 
chaps, vi to viii.) 

2 Marshall's bill in equity in the "High Court of Chancery sitting 
in Richmond," January 1, 1803; Chamberlin MSS., Boston Public 
Library. Marshall, then Chief Justice, personally drew this bill. 
After the Fairfax transaction, he seems to have left to his brother 
and partner, James M. Marshall, the practical handling of his busi- 
ness affairs. 



174 JOHN MARSHALL 

that he was negligent of his own affairs. Especially 
was he in demand, it would seem, when an enter- 
prise was to be launched which required public con- 
fidence for its success. For instance, the subscribers 
to a fire insurance company appointed him on the 
committee to examine the proposed plan of business 
and to petition the Legislature for a charter, 1 which 
was granted under the name of the "Mutual As- 
surance Society of Virginia." 2 Thus Marshall was a 
founder of one of the oldest American fire insurance 
companies. 3 Again, when in 1792 the "Bank of 
Virginia," a State institution, was organized, 4 
Marshall was named as one of the committee to 
receive and approve subscriptions for stock. 5 

No man could have been more watchful than was 
Marshall of the welfare of members of his family. 
At one of the most troubled moments of his life, when 
greatly distressed by combined business and political 
complications, 6 he notes a love affair of his sister and, 
unasked, carefully reviews the eligibility of her suitor. 
Writing to his brother James on business and poli- 
tics, he says: — 

"I understand that my sister Jane, while here 
[Richmond], was addressed by Major Taylor and 
that his addresses were encouraged by her. I am not 
by any means certain of the fact nor did I suspect 

1 Memorial of William F. Ast and others; MS. Archives, Va. St. 
Lib. 

2 Christian, 46. 

3 This company is still doing business in Richmond. 

4 Christian, 46. 

1 The enterprise appears not to have filled the public with invest- 
ing enthusiasm and no subscriptions to it were received. 
e See infra, chap. x. 



THE MAN AND THE LATTER 175 

it until we had separated the night preceding her 
departure and consequently I could have no conver- 
sation with her concerning it. 

"I believe that tho' Major Taylor was attach'd to 
her, it would probably have had no serious result if 
Jane had not manifested some partiality for him. 
This affair embarrasses me a good deal. Major Tay- 
lor is a young gentleman of talents and integrity for 
whom I profess and feel a real friendship. There is 
no person with whom I should be better pleased if 
there were not other considerations which ought not 
to be overlooked. Mr. Taylor possesses but little 
if any fortune, he is encumbered with a family, and 
does not like his profession. Of course he will be as 
eminent in his profession as his talents entitle him 
to be. These are facts unknown to my sister but 
which ought to be known to her. 

"Had I conjectured that Mr. Taylor was con- 
templated in the character of a lover I shou'd cer- 
tainly have made to her all proper communications. 
I regret that it was concealed from me. I have a sin- 
cere and real affection and esteem for Major Taylor 
but I think it right in affairs of this sort that the real 
situation of the parties should be mutually under- 
stood. Present me affectionately to my sister." 1 

1 Marshall to James M. Marshall, April 3, 1799; MS. This was 
the only one of Marshall's sisters then unmarried. She was twenty 
years of age at this time and married Major George Keith Taylor 
within a few months. He was a man of unusual ability and high char- 
acter and became very successful in his profession. In 1801 he was 
appointed by President Adams, United States Judge for a Virginia 
district. (See infra, chap, xn.) The union of Mr. Taylor and Jane 
Marshall turned out to be very happy indeed. (Paxton, 77.) 

Compare this letter of Marshall with that of Washington to his niece. 



176 JOHN MARSHALL 

From the beginning of his residence in Richmond, 
Marshall had been an active member of the Ma- 
sonic Order. He had become a Free Mason while in 
the Revolutionary army, 1 which abounded in camp 
lodges. It was due to his efforts as City Recorder of 
Richmond that a lottery was successfully conducted 
to raise funds for the building of a Masonic hall in 
the State Capital in 1785. 2 The following year Mar- 
shall was appointed Deputy Grand Master. In 1792 
he presided over the Grand Lodge as Grand Master 
pro tempore; and the next year he was chosen as the 
head of the order in Virginia. He was reelected as 
Grand Master in 1794; and presided over the meet- 
ings of the Grand Lodge held during 1793 until 1795 
inclusive. During the latter year the Masonic hall 
in Manchester was begun and he assisted in the cere- 
monies attending the laying of the corner-stone, 
which bore this inscription: "This stone was laid 
by the Worshipful Archibald Campbell, Master of 
the Manchester Lodge of free & accepted Masons 
Assisted by & in the presence of the Most Worship- 
ful John Marshall Grand Master of Masons to 
Virginia." 3 

Upon the expiration of his second term in this 
office, the Grand Lodge "Resolved, that the Grand 
Lodge are truly sensible of the great attention of our 
late Grand Master, John Marshall, to the duties of 
Masonry, and that they entertain an high sense 

in which he gives extensive advice on the subject of love and marriage. 
(Washington to Eleanor Parke Custis, Jan. 16, 1795; Writings: Ford* 
xiii, 29-32.) 

1 Marshall to Everett, July 22, 1833. 

2 Christian, 28. 

3 Richmond and Manchester Advertiser, Sept. 24, 1795. 



THE MAN AXD THE LAWYER 177 

of the wisdom displayed by him in the discharge of 
the duties of his office; and as a token of their en- 
tire approbation of his conduct do direct the Grand 
Treasurer to procure and present him with an ele- 
gant Past Master's jewel." x 

From 1790 until his election to Congress, nine 
years later, 2 Marshall argued one hundred and 
thirteen cases decided by the Court of Appeals of 
Virginia. Notwithstanding his almost continuous 
political activity, he appeared, during this time, in 
practically every important cause heard and deter- 
mined by the supreme tribunal of the State. When- 
ever there was more than one attorney for the client 
who retained Marshall, the latter almost invariably 
was reserved to make the closing argument. His ab- 
sorbing mind took in everything said or suggested 
by counsel who preceded him; and his logic easily 
marshaled the strongest arguments to support his 
position and crushed or threw aside as unimportant 
those advanced against him. 

Marshall preferred to close rather than open an 
argument. He wished to hear all that other counsel 
might have to say before he spoke himself; for, as 
has appeared, he was but slightly equipped with 
legal learning 3 and he informed himself from the 
knowledge displayed by his adversaries. Even after 
he had become Chief Justice of the Supreme Court 
of the United States and throughout his long and 
epochal occupancy of that high place, Marshall 

1 Proceedings of the M. W. Grand Lodge of Ancient York Masons 
of the State of Virginia, from 1778 to 1822, by John Dove, i, 144; 
see also 121, 139. 

2 See infra, chap. x. 3 See vol. I, chap, v, of this work. 



178 JOHN MARSHALL 

showed this same peculiarity which was so promi- 
nent in his practice at the bar. 

Every contemporary student of Marshall's method 
and equipment notes the meagerness of his learning 
in the law. "Everyone has heard of the gigantick 
abilities of John Marshall; as a most able and pro- 
found reasoner he deserves all the praise which has 
been lavished upon him," writes Francis Walker 
Gilmer, in his keen and brilliant contemporary 
analysis of Marshall. "His mind is not very richly 
stored with knowledge," he continues, "but it is so 
creative, so well organized by nature, or disciplined 
by early education, and constant habits of syste- 
matick thinking, that he embraces every subject 
with the clearness and facility of one prepared by 
previous study to comprehend and explain it." 1 

Gustavus Schmidt, who was a competent critic 
of legal attainments and whose study of Marshall 
as a lawyer was painstaking and thorough, bears 
witness to Marshall's scanty acquirements. "Mr. 
Marshall," says Schmidt, "can hardly be regarded 
as a learned lawyer. . . . His acquaintance with the 
Roman jurisprudence as well as with the laws of 
foreign countries was not very extensive. He was 
what is called a common law lawyer in the best & 
noblest acceptation of that term." 

Mr. Schmidt attempts to excuse Marshall's want 
of those legal weapons which knowledge of the books 
supply. 

"He was educated for the bar," writes Schmidt, 
"at a period when digests, abridgments & all the 

1 Gilmer, 23-24. 



THE MAN AND THE LAWYER 179 

numerous facilities, which now smooth the path of 
the law student were almost unknown & when you 
often sought in vain in the Reporters which usually 
wore the imposing form of folios, even for an index 
of the decisions & when marginal notes of the points 
determined in a case was a luxury not to be either 
looked for or expected. 

"At this period when the principles of the Com- 
mon Law had to be studied in the black-letter pages 
of Coke upon Littleton, a work equally remarkable 
for quaintness of expression, profundity of research 
and the absence of all method in the arrangements of 
its very valuable materials; when the rules of plead- 
ing had to be looked for in Chief Justice Saunders's 
Reports, while the doctrinal parts of the jurispru- 
dence, based almost exclusively on the precedents 
had to be sought after in the reports of Dyer, Plow- 
den, Coke, Popham. ... it was ... no easy task to 
become an able lawyer & it required no common 
share of industry and perseverance to amass suf- 
ficient knowledge of the law to make even a decent 
appearance in the forum." * 

It would not be strange, therefore, if Marshall did 
cite very few authorities in the scores of cases argued 
by him. But it seems certain that he would not have 
relied upon the "learning of the law" in any event; 
for at a later period, when precedents were more 
abundant and accessible, he still ignored them. 
Even in these early years other counsel exhibited 
the results of much research; but not so Marshall. 
In most of his arguments, as reported in volumes one, 
1 Gustavus Schmidt, in Louisiana Law Journal (1841), 81-82. 



180 JOHN MARSHALL 

two, and four of Call's Virginia Reports and in vol- 
umes one and two of Washington's Virginia Reports, 1 
he depended on no authority whatever. Frequently 
when the arguments of his associates and of oppos- 
ing counsel show that they had explored the whole 
field of legal learning on the subject in hand, Mar- 
shall referred to no precedent. 2 The strongest fea- 
ture of his argument was his statement of the case. 

The multitude of cases which Marshall argued 
before the General Court of Appeals and before the 
High Court of Chancery at Richmond covered every 
possible subject of litigation at that time. He lost 
almost as frequently as he won. Out of one hundred 
and twenty-one cases reported, Marshall was on 
the winning side sixty-two times and on the losing 
side fifty times. In two cases he was partly suc- 
cessful and partly unsuccessful, and in seven it is 
impossible to tell from the reports what the outcome 
was. 

Once Marshall appeared for clients whose cause 
was so weak that the court decided against him on 
his own argument, refusing to hear opposing coun- 
sel. 3 He was extremely frank and honest with the 

1 For a list of cases argued by Marshall and reported in Call and 
Washington, with title of case, date, volume, and page, see Appen- 
dix I. 

2 A good illustration of a brilliant display of legal learning by as- 
sociate and opposing counsel, and Marshall's distaste for authorities 
when he could do without them, is the curious and interesting case of 
Coleman vs. Dick and Pat, decided in 1793, and reported in 1 Wash- 
ington, 233. Wickham for appellant and Campbell for appellee cited 
ancient laws and treaties as far back as 1662. Marshall cited no au- 
thority whatever. 

3 See Stevens vs. Taliaferro, Adm'r, 1 Washington, 155, Spring 
Term, 1793. 



THE MAN AND THE LAWYER 181 

court, and on one occasion went so far as to say that 
the opposing counsel was in the right and himself 
in the wrong. 1 "My own opinion," he admitted to 
the court in this case, "is that the law is correctly 
stated by Mr. Ronald [the opposing counsel], but 
the point has been otherwise determined in the 
General Court." Marshall, of course, lost. 2 

Nearly all the cases in which Marshall was en- 
gaged concerned property rights. Only three or four 
of the controversies in which he took part involved 
criminal law. A considerable part of the litigation in 
which he was employed was intricate and involved; 
and in this class of cases his lucid and orderly mind 
made him the intellectual master of the contending 
lawyers. Marshall's ability to extract from the con- 
fusion of the most involved question its vital ele- 
ments and to state those elements in simple terms 
was helpful to the court, and frankly appreciated by 
the judges. 

Few letters of Marshall to his fellow lawyers writ- 
ten during this period are extant. Most of these are 
very brief and confined strictly to the particular 
cases which he had been retained by his associate 
attorneys throughout Virginia to conduct before 
the Court of Appeals. Occasionally, however, his 
humor breaks forth. 

"I cannot appear for Donaghoe," writes Marshall 
to a country member of the bar who lived in the Val- 
ley over the mountains. " I do not decline his business 
from any objection to his bank. To that I should 
like very well to have free access & wou'd certainly 

1 Johnson vs. Bourn, 1 Washington, 187, Spring Term, 1793. 2 lb. 



182 JOHN MARSHALL 

discount from it as largely as he wou'd permit, but I 
am already fixed by Rankin & as those who are once 
in the bank do not I am told readily get out again I 
despair of being ever able to touch the guineas of 
Donaghoe. 

"Shall we never see you again in Richmond? I 
was very much rejoiced when I heard that you were 
happily married but if that amounts to a ne exeat 
which is to confine you entirely to your side of the 
mountain, I shall be selfish enough to regret your 
good fortune & almost wish you had found some 
little crooked rib among the fish and oysters which 
would once a year drag you into this part of our 
terraqueous globe. 

"You have forgotten I believe the solemn com- 
pact we made to take a journey to Philadelphia to- 
gether this winter and superintend for a while the 
proceedings of Congress." l 

Again, writing to Stuart concerning a libel suit, 
Marshall says: "Whether the truth of the libel may 
be justified or not is a perfectly unsettled question. 
If in that respect the law here varies from the law 
of England it must be because such is the will of their 
Honors for I know of no legislative act to vary it. 
It will however be right to appeal was it only to 
secure a compromise." 2 

Marshall's sociableness and love of play made him 
the leader of the Barbecue Club, consisting of 
thirty of the most agreeable of the prominent men 
in Richmond. Membership in this club was eagerly 

1 Marshall to Archibald Stuart, March 27, 1794; MS., Va. Hist. Soc 

2 lb., May 28, 1794. 



THE MAN AND THE LAWYER 183 

sought and difficult to secure, two negatives being 
sufficient to reject a candidate. Meetings were held 
each Saturday, in pleasant weather, at "the springs " 
on the farm of Mr. Buchanan, the Episcopal clergy- 
man. There a generous meal was served and games 
played, quoits being the favorite sport. One such 
occasion of which there is a trustworthy account 
shows the humor, the wit, and the good-fellowship 
of Marshall. 

He welcomed the invited guests, Messrs. Blair and 
Buchanan, the famous "Two Parsons" of Rich- 
mond, and then announced that a fine of a basket 
of champagne, imposed on two members for talking 
politics at a previous meeting of the club, had been 
paid and that the wine was at hand. It was drunk 
from tumblers and the Presbyterian minister joked 
about the danger of those who " drank from tumblers 
on the table becoming tumblers under the table." 
Marshall challenged "Parson" Blair to a game of 
quoits, each selecting four partners. His quoits were 
big, rough, heavy iron affairs that nobody else could 
throw, those of the other players being smaller and 
of polished brass. Marshall rang the meg and Blair 
threw his quoit directly over that of his opponent. 
Loud were the cries of applause and a great contro- 
versy arose as to which player had won. The deci- 
sion was left to the club with the understanding that 
when the question was determined they should 
"crack another bottle of champagne." 

Marshall argued his own case with great solemnity 
and elaboration. The one first ringing the meg must 
be deemed the winner, unless his adversary knocked 



184 JOHN MARSHALL 

off the first quoit and put his own in its place. This 
required perfection, which Blair did not possess. 
Blair claimed to have won by being on top of Mar- 
shall; but suppose he tried to reach heaven "by rid- 
ing on my back," asked Marshall. "I fear that from 
my many backslidings and deficiencies, he may be 
badly disappointed." Blair's method was like play- 
ing leap frog, said he. And did anybody play back- 
gammon in that way? Also there was the ancient 
legal maxim, "Cujus est solum, ejus est usque ad 
caelum " : being " the first occupant his right extended 
from the ground up to the vault of heaven and no one 
had a right to become a squatter on his back." If 
Blair had any claim "he must obtain a writ of eject- 
ment or drive him [Marshall] from his position vi et 
armis." Marshall then cited the boys' game of 
marbles and, by analogy, proved that he had won 
and should be given the verdict of the club. 

Wickham argued at length that the judgment of 
the club should be that "where two adversary quoits 
are on the same meg, neither is victorious." Mar- 
shall's quoit was so big and heavy that no ordinary 
quoit could move it and "no rule requires an impos- 
sibility." As to Marshall's insinuation that Blair 
was trying to reach "Elysium by mounting on his 
back," it was plain to the club that such was not the 
parson's intention, but that he meant only to get a 
more elevated view of earthly things. Also Blair, by 
"riding on that pinnacle," will be apt to arrive in 
time at the upper round of the ladder of fame. The 
legal maxim cited by Marshall was really against his 
claim, since the ground belonged to Mr. Buchanan 



THE MAN AND THE LAWYER 185 

and Marshall was as much of a "squatter" as Blair 
was. "The first squatter was no better than the 
second." And why did Marshall talk of ejecting him 
by force of arms? Everybody knew that "parsons are 
men of peace and do not vanquish their antagonists 
vi et armis. We do not deserve to prolong this riding 
on Mr. Marshall's back; he is too much of a Rosi- 
nante to make the ride agreeable." The club declined 
to consider seriously Marshall's comparison of the 
manly game of quoits with the boys' game of mar- 
bles, for had not one of the clergymen present 
preached a sermon on "marvel not" ? There was no 
analogy to quoits in Marshall's citation of leap frog 
nor of backgammon; and Wlckham closed, amid the 
cheers of the club, by pointing out the difference 
between quoits and leap frog. 

The club voted with impressive gravity, taking 
care to make the vote as even as possible and finally 
determined that the disputed throw was a draw. 
The game was resumed and Marshall won. 1 

Such were Marshall's diversions when an attorney 
at Richmond. His "lawyer dinners" at his house, 2 
his card playing at Farmicola's tavern, his quoit- 
throwing and pleasant foolery at the Barbecue Club, 
and other similar amusements which served to take 
his mind from the grave problems on which, at other 
times, it was constantly working, were continued, as 
we shall see, and with increasing zest, after he be- 
came the world's leading jurist-statesman of his 
time. But neither as lawyer nor judge did these 
wholesome frivolities interfere with his serious work. 

1 Munford, 326-38. 2 See vol. in of this work. 



186 JOHN MARSHALL 

Marshall's first case of nation-wide interest, in 
which his argument gave him fame among lawyers 
throughout the country, was the historic controversy 
over the British debts. When Congress enacted the 
Judiciary Law of 1789 and the National Courts were 
established, British creditors at once began action to 
recover their long overdue debts. During the Rev- 
olution, other States as well as Virginia had passed 
laws confiscating the debts which their citizens owed 
British subjects and sequestering British property. 

Under these laws, debtors could cancel their 
obligations in several ways. The Treaty of Peace 
between the United States and Great Britain pro- 
vided, among other things, that "It is agreed that 
creditors on either side shall meet with no legal im- 
pediments to the recovery of the full value in sterling 
money of all bona fide debts heretofore contracted." 
The Constitution provided that " All treaties made, or 
which shall be made, under the authority of the United 
States, shall be the supreme law of the land; and the 
judges in every State shall be bound thereby, any- 
thing in the Constitution or laws of any State to the 
contrary notwithstanding," * and that "The judicial 
power shall extend to all cases in law and equity 
arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be 
made, under their authority; to all cases . . . be- 
tween a State, or the citizens thereof, and foreign 
States citizens, or subjects." 2 

Thus the case of Ware, Administrator, vs. Hylton 

1 Constitution of the United States, article vi. 

2 lb., article iii, section 2. 



THE MAN AND THE LAWYER 187 

et ah, which involved the validity of a State law in 
conflict with a treaty, attracted the attention of the 
whole country when finally it reached the Supreme 
Court. The question in that celebrated controversy 
was whether a State law, suspending the collection 
of a debt due to a subject of Great Britain, was valid 
as against the treaty which provided that no "legal 
impediment" should prevent the recovery of the 
obligation. 

Ware vs. Hylton was a test case; and its decision 
involved immense sums of money. Large numbers of 
creditors who had sought to cancel their debts under 
the confiscation laws were vitally interested. Mar- 
shall, in this case, made the notable argument that 
carried his reputation as a lawyer beyond Virginia 
and won for him the admiration of the ablest men 
at the bar, regardless of their opinion of the merits of 
the controversy. 

It is an example of "the irony of fate" that in this 
historic legal contest Marshall supported the theory 
which he had opposed throughout his public career 
thus far, and to demolish which his entire after life 
was given. More remarkable still, his efforts for 
his clients were opposed to his own interests; for, 
had he succeeded for those who employed him, he 
would have wrecked the only considerable business 
transaction in which he ever engaged. 1 He was 
employed by the debtors to uphold those laws of 
Virginia which sequestered British property and 
prevented the collection of the British debts; and 
he put forth all his power in this behalf. 

1 The Fairfax deal ; see infra, 203 et seq. 



188 JOHN MARSHALL 

Three such cases were pending in Virginia; and 
these were heard twice by the National Court in 
Richmond as a consolidated cause, the real issue 
being the same in all. The second hearing was during 
the May Term of 1793 before Chief Justice Jay, Jus- 
tice Iredell of, the Supreme Court, and Judge Griffin 
of the United States District Court. The attorneys 
for the British creditors were William Ronald, John 
Baker, John Stark, and John Wickham. For the de- 
fendants were Alexander Campbell, James Innes, 
Patrick Henry, and John Marshall. Thus we see 
Marshall, when thirty-six years of age, after ten 
years of practice at the Richmond bar, interrupted 
as those years were by politics and legislative activi- 
ties, one of the group of lawyers who, for power, bril- 
liancy, and learning, were unsurpassed in America. 

The argument at the Richmond hearing was a 
brilliant display of eloquence, reasoning, and erudi- 
tion, and, among lawyers, its repute has reached even 
to the present day. Counsel on both sides exerted 
every ounce of their strength. When Patrick Henry 
had finished his appeal, Justice Iredell was so over- 
come that he cried, "Gracious God! He is an orator 
indeed!" * The Countess of Huntingdon, who was 
then in Richmond and heard the arguments of all 
the attorneys, declared: "If every one had spoken in 
Westminster Hall, they would have been honored 
with a peerage." 2 

In his formal opinion, Justice Iredell thus ex- 
pressed his admiration: "The cause has been spoken 
to, at the bar, with a degree of ability equal to any 
1 Henry, ii, 475. 2 Howe, 221-22. 



THE MAN AND THE LAWYER 189 

occasion. ... I shall as long as I live, remember with 
pleasure and respect the arguments which I have 
heard on this case: they have discovered an in- 
genuity, a depth of investigation, and a power of 
reasoning fully equal to anything I have ever wit- 
nessed. . . . Fatigue has given way under its influ- 
ence; the heart has been warmed, while the under- 
standing has been instructed." * 

Marshall's argument before the District Court of 
Richmond must have impressed his debtor clients 
more than that of any other of their distinguished 
counsel, with the single exception of Alexander 
Campbell; for when, on appeal to the Supreme Court 
of the United States, the case came on for hearing 
in 1796, we find that only Marshall and Campbell 
appeared for the debtors. 

It is unfortunate that Marshall's argument before 
the Supreme Court at Philadelphia is very poorly 
reported. But inadequate as the report is, it still 
reveals the peculiar clearness and the compact and 
simple reasoning which made up the whole of Mar- 
shall's method, whether in legal arguments, political 
speeches, diplomatic letters, or judicial opinions. 

Marshall argued that the Virginia law barred 
the recovery of the debts regardless of the treaty. 
"It has been conceded," said he, "that independent 

1 3 Dallas, 256-57, and footnote. In his opinion Justice Iredell de- 
cided for the debtors. When the Supreme Court of the United States, 
of which he was a member, reversed him in Philadelphia, the follow- 
ing year, Justice Iredell, pursuant to a practice then existing, and on 
the advice of his brother justices, placed his original opinion on record 
along with those of Justices Chase, Paterson, Wilson, and Cushing, 
each of whom delivered separate opinions in favor of the British 
creditors. 



190 JOHN MARSHALL 

nations have, in general, the right to confiscation; 
and that Virginia, at the time of passing her law, 
was an independent nation." A State engaged in war 
has the powers of war, "and confiscation is one of 
those powers, weakening the party against whom 
it is employed and strengthening the party that em- 
ploys it." Nations have equal powers; and, from 
July 4, 1776, America was as independent a nation 
as Great Britain. What would have happened if 
Great Britain had been victorious? "Sequestration, 
confiscation, and proscription would have followed 
in the train of that event," asserted Marshall. 

Why, then, he asked, "should the confiscation of 
British property be deemed less just in the event of 
an American triumph?" Property and its disposi- 
tion is not a natural right, but the "creature of civil 
society, and subject in all respects to the disposition 
and control of civil institutions." Even if "an indi- 
vidual has not the power of extinguishing his debts," 
still "the community to which he belongs . . . may 
. . . upon principles of public policy, prevent his cred- 
itors from recovering them." The ownership and 
control of property "is the offspring of the social 
state; not the incident of a state of nature. But the 
Revolution did not reduce the inhabitants of America 
to a state of nature; and if it did, the plaintiff's claim 
would be at an end." Virginia was within her rights 
when she confiscated these debts. 

As an independent nation Virginia could do as she 
liked, declared Marshall. Legally, then, at the time 
of the Treaty of Peace in 1783, "the defendant owed 
nothing to the plaintiff." Did the treaty revive the 



THE MAX AND THE LAWYER 191 

debt thus extinguished? No : For the treaty provides 
"that creditors on either side shall meet with no 
lawful impediment to the recovery" of their debts. 
Who are the creditors? "There cannot be a creditor 
where there is not a debt; and the British debts 
were extinguished by the act of confiscation," which 
was entirely legal. 

Plainly, then, argued Marshall, the treaty "must 
be construed with reference to those creditors " 
whose debts had not been extinguished by the se- 
questration laws. There were cases of such debts 
and it was to these only that the treaty applied. The 
Virginia law must have been known to the commis- 
sioners who made the treaty; and it was unthinkable 
that they should attempt to repeal those laws in the 
treaty without using plain words to that effect. 

Such is an outline of Marshall's argument, as in- 
accurately and defectively reported. 1 

Cold and dry as it appears in the reporter's notes, 
Marshall's address to the Supreme Court made a tre- 
mendous impression on all who heard it. When he 
left the court-room, he was followed by admiring 
crowds. The ablest public men at the Capital were 
watching Marshall narrowly and these particularly 
were captivated by his argument. "His head is 
one of the best organized of any one that I have 
known," writes the keenly observant King, a year 
later, in giving to Pinckney his estimate of Marshall. 
" This I say from general Reputation, and more satis- 
factorily from an Argument that I heard him de- 

1 For Marshall's argument in the British Debts case before the 
Supreme Court, see 3 Dallas, 199-285. 



192 JOHN MARSHALL 

liver before the fed'l Court at Philadelphia." 1 King's 
judgment of Marshall's intellectual strength was 
that generally held. 

Marshall's speech had a more enduring effect on 
those who listened to it than any other address he 
ever made, excepting that on the Jonathan Robins 
case. 2 Twenty -four years afterwards William Wirt, 
then at the summit of his brilliant career, advising 
Francis Gilmer upon the art of oratory, recalled Mar- 
shall's argument in the British Debts case as an 
example for Gilmer to follow. Wirt thus contrasts 
Marshall's method with that of Campbell on the 
same occasion: — 

"Campbell played off all his Apollonian airs; but 
they were lost. Marshall spoke, as he always does, 
to the judgment merely and for the simple purpose 
of convincing. Marshall was justly pronounced one 
of the greatest men of the country; he was followed 
by crowds, looked upon, and courted with every 
evidence of admiration and respect for the great 
powers of his mind. Campbell was neglected and 
slighted, and came home in disgust. 

" Marshall's maxim seems always to have been, * aim 
exclusively at Strength:' and from his eminent suc- 
cess, I say, if I had my life to go over again, I would 
practice on his maxim with the most rigorous sever- 
ity, until the character of my mind was established." 3 

1 King to Pinckney, Oct. 17, 1797; King, ii, 234-35. King refers 
to the British Debts case, the only one in which Marshall had made 
an argument before the Supreme Court up to this time. 

2 See infra, chap. xi. 

3 Kennedy, ii, 76. Mr. Wirt remembered the argument well; but 
twenty-four years having elapsed, he had forgotten the case in which 



THE MAN AND THE LAWYER 193 

In another letter to Gilmer, Wirt again urges his 
son-in-law to imitate Marshall's style. In his early 
career Wirt had suffered in his own arguments from 
too much adornment which detracted from the real 
solidity and careful learning of his efforts at the bar. 
And when, finally, in his old age he had, through his 
own mistakes, learned the value of simplicity in state- 
ment and clear logic in argument, he counseled young 
Gilmer accordingly. 

"In your arguments at the bar," he writes, "let 
argument strongly predominate. Sacrifice your flow- 
ers. . . . Avoid as you would the gates of death, the 
reputation for floridity. . . . Imitate . . . Marshall's 
simple process of reasoning." l 

Following the advice of his distinguished brother- 
in-law, Gilmer studied Marshall with the hungry 
zeal of ambitious youth. Thus it is that to Francis 
Gilmer we owe what is perhaps the truest analysis, 
made by a personal observer, of Marshall's method as 
advocate and orator. 

"So perfect is his analysis," records Gilmer, 
"that he extracts the whole matter, the kernel 
of the inquiry, unbroken, undivided, clean and en- 
tire. In this process, such is the instinctive neat- 
ness and precision of his mind that no superfluous 
thought, or even word, ever presents itself and still 

it was made. He says that it was the Carriage Tax case and that 
Hamilton was one of the attorneys. But it was the British Debts 
case and Hamilton's name does not appear in the records. 

1 Kennedy, ii, 66. Francis W. Gilmer was then the most brilliant 
young lawyer in Virginia. His health became too frail for the hard 
work of the law; and his early death was universally mourned as 
the going out of the brightest light among the young men of the 
Old Dominion. 



194 JOHN MARSHALL 

he says everything that seems appropriate to the 
subject. 

"This perfect exemption from any unnecessary 
encumbrance of matter or ornament, is in some de- 
gree the effect of an aversion for the labour of think- 
ing. So great a mind, perhaps, like large bodies in 
the physical world, is with difficulty set in motion. 
That this is the case with Mr. Marshall's is manifest, 
from his mode of entering on an argument both in 
conversation and in publick debate. 

"It is difficult to rouse his faculties; he begins with 
reluctance, hesitation, and vacancy of eye; presently 
his articulation becomes less broken, his eye more 
fixed, until finally, his voice is full, clear, and rapid, 
his manner bold, and his whole face lighted up, with 
the mingled fires of genius and passion ; and he pours 
forth the unbroken stream of eloquence, in a current 
deep, majestick, smooth, and strong. 

" He reminds one of some great bird, which floun- 
ders and flounces on the earth for a while before it 
acquires the impetus to sustain its soaring flight. 

"The characteristick of his eloquence is an irre- 
sistible cogency, and a luminous simplicity in the 
order of his reasoning. His arguments are remarkable 
for their separate and independent strength, and for 
the solid, compact, impenetrable order in which they 
are arrayed. 

"He certainly possesses in an eminent degree the 
power which had been ascribed to him, of mastering 
the most complicated subjects with facility, and 
when moving with his full momentum, even without 
the appearance of resistance." 



THE MAN AXD THE LAWYER 195 

Comparing Marshall and Randolph, Gilmer says : — 

"The powers of these two gentlemen are strik- 
ingly contrasted by nature. In Mr. Marshall's 
speeches, all is reasoning; in Mr. Randolph's every- 
thing is declamation. The former scarcely uses a 
figure; the latter hardly an abstraction. One is awk- 
ward; the other graceful. 

"One is indifferent as to his words, and slovenly 
in his pronunciation; the other adapts his phrases 
to the sense with poetick felicity; his voice to the 
sound with musical exactness. 

"There is no breach in the train of Mr. Marshall's 
thoughts; little connection between Mr. Randolph's. 
Each has his separate excellence, but either is far 
from being a finished orator." x 

Another invaluable first-hand analysis of Mar- 
shall's style and manner of argument is that of Wil- 
liam Wirt, himself, in the vivacious descriptions of 
"The British Spy": — 

"He possesses one original, and, almost super- 
natural faculty, the faculty of developing a subject 
by a single glance of his mind, and detecting at 
once, the very point on which every controversy 
depends. No matter what the question; though 
ten times more knotty than 'the gnarled oak,' the 
lightning of heaven is not more rapid nor more 
resistless, than his astonishing penetration. 

"Nor does the exercise of it seem to cost him an 
effort. On the contrary, it is as easy as vision. I am 
persuaded that his eye does not fly over a landscape 
and take in its various objects with more prompt i- 

1 Gilmer, 23-24. 



196 JOHN MARSHALL 

tilde and facility, than his mind embraces and analy- 
ses the most complex subject. 

"Possessing while at the bar this intellectual ele- 
vation, which enabled him to look down and com- 
prehend the whole ground at once, he determined 
immediately and without difficulty, on which side 
the question might be most advantageously ap- 
proached and assailed. 

"In a bad cause his art consisted in laying his 
premises so remotely from the point directly in 
debate, or else in terms so general and so spacious, 
that the hearer, seeing no consequence which could 
be drawn from them, was just as willing to admit 
them as not; but his premises once admitted, the 
demonstration, however distant, followed as cer- 
tainly, as cogently, as inevitably, as any demonstra- 
tion in Euclid." x 

Marshall's supremacy, now unchallenged, at the 
Virginia bar was noted by foreign observers. La 
Rochefoucauld testifies to this in his exhaustive 
volumes of travel : — ■ 

"Mr. J. Marshall, conspicuously eminent as a 
professor of the law, is beyond all doubt one of those 
who rank highest in the public opinion at Richmond. 
He is what is termed a federalist, and perhaps 
somewhat warm in support of his opinions, but 
never exceeding the bounds of propriety, which a 
man of his goodness and prudence and knowledge 
is incapable of transgressing. 

"He may be considered as a distinguished char- 
acter in the United States. His political enemies 

1 Wirt: The British Spy, 112-13. 



THE MAN AND THE LAWYER 197 

allow him to possess great talents but accuse him of 
ambition. I know not whether the charge be well 
or ill grounded, or whether that ambition might ever 
be able to impel him to a dereliction of his principles 
— a conduct of which I am inclined to disbelieve 
the possibility on his part. 

"He has already refused several employments 
under the general government, preferring the in- 
come derived from his professional labours (which 
is more than sufficient for his moderate system of 
economy), together with a life of tranquil ease in 
the midst of his family and in his native town. 

"Even by his friends he is taxed with some little 
propensity to indolence; but even if this reproach 
were well founded, he nevertheless displays great 
superiority in his profession when he applies his 
mind to business." * 

When Jefferson foresaw Marshall's permanent 
transfer to public life he advised James Monroe to 
practice law in Richmond because "the business is 
very profitable ; 2 . . . and an opening of great im- 
portance must be made by the retirement of Mar- 
shall." 3 

1 La Rochefoucauld, iii, 120. Doubtless La Rochefoucauld would 
nave arrived at the above conclusion in any event, since his estimate 
of Marshall is borne out by every contemporary observer; but it is 
worthy of note that the Frenchman while in Richmond spent much 
of his time in Marshall's company. (lb., 119.) 

2 lb., 75. "The profession of a lawyer is . . . one of the most profit- 
able. ... In Virginia the lawyers usually take care to insist on pay- 
ment before they proceed in a suit; and this custom is justified by the 
general disposition of the inhabitants to pay as little and as seldom as 
possible." 

3 Jefferson to Monroe, Feb. 8, 1798; Works: Ford, viii, 365. Mar- 
shall was in France at the time. (See infra, chaps, vi to vm inclusive.) 



198 JOHN MARSHALL 

Marshall's solid and brilliant performance in the 
British Debts case before the Supreme Court at 
Philadelphia did much more than advance him in 
his profession. It also focused upon him the keen 
scrutiny of the politicians and statesmen who at that 
time were in attendance upon Congress in the Quaker 
City. Particularly did the strength and personal- 
ity of the Virginia advocate impress the Federalist 
leaders. 

These vigilant men had learned of Marshall's dar- 
ing championship of the Jay Treaty in hostile Vir- 
ginia. And although in the case of Ware vs. Hylton, 
Marshall was doing his utmost as a lawyer before 
the Supreme Court to defeat the collection of the 
British debts, yet his courageous advocacy of the 
Jay Treaty outweighed, in their judgment, his pro- 
fessional labors in behalf of the clients who had 
employed him. 

The Federalist leaders were in sore need of South- 
ern support; and when Marshall was in Philadelphia 
on the British Debts case, they were prompt and un- 
sparing in their efforts to bind this strong and able 
man to them by personal ties. Marshall himself un- 
wittingly testifies to this. "I then [during this pro- 
fessional visit to Philadelphia] became acquainted," 
he relates, "with Mr. Cabot, Mr. Ames, Mr. Dex- 
ter, and Mr. Sedgwick of Massachusetts, Mr. Wads- 
worth of Connecticut, and Mr. King of New York. 
I was delighted with these gentlemen. The particu- 
lar subject (the British Treaty) which introduced me 
to their notice was at that time so interesting, and 
a Virginian who supported, with any sort of repu- 



THE MAN AXD THE LAWYER 199 

tation, the measures of the government, was such a 
rara avis, that I was received by them all with a 
degree of kindness which I had not anticipated. I 
was particularly intimate with Mr. Ames, and could 
scarcely gain credit with him when I assured him 
that the appropriations [to effectuate the treaty] 
would be seriously opposed in Congress." * 

As we shall presently see, Marshall became asso- 
ciated with Robert Morris in the one great business 
undertaking of the former's life. Early in this trans- 
action when, for Marshall, the skies were still clear 
of financial clouds, he appears to have made a small 
purchase of bank stock and ventured modestly into 
the commercial field. "I have received your letter 
of 18 ulto," Morris writes Marshall, "& am nego- 
tiating for Bank Stock to answer your demand." 2 

And again: "I did not succeed in the purchase of 
the Bank Stock mentioned in my letter of the 3 d Ulto 
to you and as M r Richard tells me in his letter of the 
4 Inst that you want the money for the Stock, you 
may if you please draw upon me for $7000 giving 
me as much time in the sight as you can, and I will 
most certainly pay your drafts as they become due. 
The Brokers shall fix the price of the Stock at the 
market price at the time I pay the money & I will 
then state the Am* including Dividends & remit 
you the Balance but if you prefer having the Stock 

1 Story, in Dillon, iii, 354. Ware vs. Hylton was argued Feb. 6, 8, 9, 
10, 11, and 12. The fight against the bill to carry out the Jay Treaty 
did not begin in the National House of Representatives until March 
7, 1796. 

2 Morris to Marshall, May 3, 1796; Morris's Private Letter Book; 
MS., Lib. Cong. The stock referred to in this correspondence is 
probably that of the Bank of the United States. 



200 JOHN MARSHALL 

I will buy it on receiving your Answer to this, cost 
what it may." 1 

Soon afterward, Morris sent Marshall the promised 
shares of stock, apparently to enable him to return 
shares to some person in Richmond from whom he 
had borrowed them. 

"You will receive herewith enclosed the Certifi- 
cates for four shares of Bank Stock of the United 
States placed in your name to enable you to return 
the four shares to the Gentlemen of whom you bor- 
rowed them, this I thought better than remitting 
the money lest some difficulty should arise about 
price of shares. Two other shares in the name of 
M r Geo Pickett is also enclosed herewith and I 
will go on buying and remitting others untill the 
number of Ten are completed for him which shall 
be done before the time limited in your letter of 
the 12 h Ins 1 The dividends shall also be remitted 
speedily." 2 

Again Washington desired Marshall to fill an im- 
portant public office, this time a place on the joint 
commission, provided for in the Jay Treaty, to settle 
the British claims. These, as we have seen, had 
been for many years a source of grave trouble be- 
tween the two countries. Their satisfactory adjust- 
ment would mean, not only the final settlement of 
this serious controversy, but the removal of an ever- 
present cause of war. 3 But since Marshall had re- 

1 Morris to Marshall, June 16, 1796; Morris's Private Letter Book; 
MS., Lib. Cong. 

2 Morris to Marshall, Aug. 24, 1796; ib. 

3 The commission failed and war was narrowly averted by the pay- 
ment of a lump sum to Great Britain. It is one of the curious turns of 



THE MAN AND THE LAWYER 201 

fused appointment to three offices tendered him by 
Washington, the President did not now communi- 
cate with him directly, but inquired of Charles Lee, 
Attorney-General of Virginia, whether Marshall 
might be prevailed upon to accept this weighty and 
delicate business. 

"I have very little doubt," replied Lee, "that 
Mr. John Marshall would not act as a Commissioner 
under the Treaty with Great Britain, for deciding 
on the claims of creditors. I have been long ac- 
quainted with his private affairs, and I think it al- 
most impossible for him to undertake that office. If 
he would, I know not any objection that subsists 
against him. 

"First, he is not a debtor. 1 Secondly, he cannot 
be benefitted or injured by any decision of the Com- 
missioners. Thirdly, his being employed as counsel, 
in suits of that kind, furnishes no reasonable ob- 
jection; nor do I know of any opinions that he has 
published, or professes, that might, with a view of 
impartiality, make him liable to be objected to. 

"Mr. Marshall is at the head of his profession in 
Virginia, enjoying every convenience and comfort; 
in the midst of his friends and the relations of his 
wife at Richmond; in a practice of his profession 
that annually produces about five thousand dollars 
on an average; with a young and increasing family; 
and under a degree of necessity to continue his pro- 
history that Marshall, as Secretary of State, made the proposition that 
finally concluded the matter and that Jefferson consummated the 
transaction. (See infra, chap, xn.) 

1 Lee means a debtor under the commission. Marshall was a debtor 
to Fairfax. (See infra.) 



202 JOHN MARSHALL 

fession, for the purpose of complying with contracts 
not yet performed." x 

The " contracts " which Marshall had to fulfill con- 
cerned the one important financial adventure of his 
life. It was this, and not, as some suppose, the condi- 
tion of his invalid wife, to which Marshall vaguely re- 
ferred in his letter to Washington declining appoint- 
ment as Attorney-General and as Minister to France. 

The two decades following the establishment of the 
National Government under the Constitution were 
years of enormous land speculation. Hardly a promi- 
nent man of the period failed to secure large tracts 
of real estate, which could be had at absurdly low 
prices, and to hold the lands for the natural advance 
which increasing population would bring. The great- 
est of these investors was Robert Morris, the finan- 
cier of the Revolution, the second richest man of the 
time, 2 and the leading business man of the country. 

1 Lee to Washington, March 20, 1796; Cor. Rev. : Sparks, iv, 481-82. 

2 William Bingham of Philadelphia was reputed to be " the richest 
man of his time." (Watson: Annals of Philadelphia i. 414.) Chastellux 
estimates Morris's wealth at the close of the Revolution at 8,000,000 
francs. (Chastellux, 107.) He increased his fortune many fold from 
the close of the war to 1796. 

The operations of Robert Morris in land were almost without limit. 
For instance, one of the smaller items of his purchases was 199.480 
acres in Burke County, North Carolina. (Robert Morris to James 
M. Marshall, Sept. 24, 1795; Morris's Private Letter Book; MS., 
Lib. Cong.) 

Another example of Morris's scattered and detached deals was his 
purchase of a million acres "lying on the western counties of Virginia 
. . . purchased of William Cary Nicholas. ... I do not consider one 
shilling sterling as one fourth the real value of the lands. ... If, there- 
fore," writes Morris to James M. Marshall, "a little over £5000 Stg. 
could be made on this security it would be better than selling especi- 
ally at 12? per acre." (Robert Morris to James M. Marshall, Oct. 10, 
1795; ib.) 

Morris owned at one time or another nearly all of the western half 



THE MAN AND THE LAWYER 203 

John Marshall had long been the attorney in Vir- 
ginia for Robert Morris, who frequently visited 
that State, sometimes taking his family with him. 
In all probability, it was upon some such journey 
that James M. Marshall, the brother of John Mar- 
shall, met and became engaged to Hester Morris, 
daughter of the great speculator, whom he married 
on April 19, 1795. 1 James M. Marshall — nine years 
younger than his brother — possessed ability almost 
equal to John Marshall and wider and more varied 
accomplishments. 2 

It is likely that the Pennsylvania financier, before 
the marriage, suggested to the Marshall brothers the 
purchase of what remained of the Fairfax estate in 
the Northern Neck, embracing over one hundred 
and sixty thousand acres of the best land in Virginia. 3 
At any rate, sometime during 1793 or 1794 John 

of New York State. (See Oberholtzer, 301 et seq.) "You knew of 
Mr. Robert Morris's purchase ... of one million, three hundred 
thousand acres of land of the State of Massachusetts, at five pence 
per acre. It is said he has sold one million two hundred thousand 
acres of these in Europe." (Jefferson to Washington, March 27, 1791 ; 
Cor. Rev.: Sparks, iv, 365.) 

Patrick Henry acquired considerable holdings which helped to make 
him, toward the end of his life, a wealthy man. Washington, who had 
a keen eye for land values, became the owner of immense quantities 
of real estate. In 1788 he already possessed two hundred thousand 
acres. (De Warville, 243.) 

1 Oberholtzer, 266 et seq. Hester Morris, at the time of her marriage 
to John Marshall's brother, was the second greatest heiress in America. 

2 Grigsby, i, footnote to 150. 

3 Deed of Lieutenant-General Phillip Martin (the Fairfax heir who 
made the final conveyance) to Rawleigh Colston, John Marshall, and 
James M. Marshall; Records at Large, Fauquier County (Virginia) 
Circuit Court, 200 et seq. At the time of the contract of purchase, 
however, the Fairfax estate was supposed to be very much larger than 
the quantity of land conveyed in this deed. It was considerably re- 
duced before the Marshalls finally secured the title. 



204 JOHN MARSHALL 

Marshall, his brother, James M. Marshall, his 
brother-in-law, Rawleigh Colston, and General 
Henry Lee contracted for the purchase of this val- 
uable holding. 1 In January of that year James 
M. Marshall sailed for England to close the bargain. 2 
The money to buy the Fairfax lands was to be 
advanced by Robert Morris, who, partly for this 
purpose, sent James M. Marshall to Europe to 
negotiate 3 loans, immediately after his marriage 
to Hester Morris. 

At Amsterdam "some Capitalists proposed to 
supply on very hard terms a Sum more than Suf- 
ficient to pay Mr. Fairfax," writes Morris, and 
James M. Marshall "has my authority to apply the 
first Monies he receives on my acco 1 to that Pay- 
ment." 4 By the end of 1796 Morris's over-specula- 
tions had gravely impaired his fortune. The old 
financier writes pathetically to James M. Marshall: 
"I am struggling hard, very hard, indeed to re- 
gain my Position." He tells his son-in-law that if a 
loan cannot be obtained on his other real estate he 
"expects these Washington Lotts will be the most 

1 Lee is mentioned in all contemporary references to this transac- 
tion as one of the Marshall syndicate, but his name does not appear 
in the Morris correspondence nor in the deed of the Fairfax heir to 
the Marshall brothers and Colston. 

2 J? Marshall to [Edmund Randolph] Jan. 21, 1794; MS. 

Archives Department of State. Marshall speaks of dispatches which 
he is carrying to Pinckney, then American Minister to Great Britain. 
This letter is incorrectly indexed in the Archives as from John Marshall. 
It is signed "J? Marshall" and is in the handwriting of James M. 
Marshall. John Marshall was in Richmond all this year, as his Ac- 
count Book shows. 

3 Morris to John Marshall, Nov. 21, 1795; and Aug. 24, 1796,* 
Morris's Private Letter Book; MS., Lib. Cong. 

4 Morris to Colston, Nov. 11, 1796; ib. 



THE MAN AND THE LAWYER 205 

certain of any Property to raise Money on"; and 
that " [I] will have a number of them Placed under 
your Controul." x 

The loan failed, for the time being, but, writes 
Morris to John Marshall, "Mr. Hottenguer 2 who 
first put the thing in motion says it will come on 
again" and succeed; "if so, your brother will, of 
course, be ready for Mr. Fairfax." Morris is trying, 
he says, to raise money from other sources lest that 
should fail. "I am here distressed exceedingly in 
money matters," continues the harried and aging 
speculator "as indeed every body here are but I will 
immediately make such exertions as are in my power 
to place funds with your brother and I cannot but 
hope that his and my exertions will produce the 
needful in proper time to prevent mischief." 3 

A month later Morris again writes John Marshall 
that he is "extremely anxious & fearing that it [the 

1 Robert Morris to James M. Marshall, Dec. 3, 1796; Morris's 
Private Letter Book; MS., Lib. Cong. By the expression "Washing- 
ton Lotts" Morris refers to his immense real estate speculations on the 
site of the proposed National Capital. Morris bought more lots in the 
newly laid out ' Federal City" than all other purchasers put together. 
Seven thousand two hundred and thirty-four lots stood in his name 
when the site of Washington was still a primeval forest. (Oberholtzer, 
308-12.) Some of these he afterwards transferred to the Marshall 
brothers, undoubtedly to make good his engagement to furnish the 
money for the Fairfax deal, which his failure prevented him from ad- 
vancing entirely in cash. (For account of Morris's real estate trans- 
actions in Washington see La Rochefoucauld, iii, 622-26.) 

2 This Hottenguer soon appears again in John Marshall's life as 
one of Talleyrand's agents who made the corrupt proposals to Mar- 
shall, Pinckney, and Gerry, the American Commissioners to France 
in the famous X.Y.Z. transaction of 1797-98. (See infra, chaps, vi 
to vin.) 

3 Robert Morris to John Marshall, Dec. 30, 1796; Morris's Private 
Letter Book; MS., Lib. Cong. 



206 JOHN MARSHALL 

Amsterdam loan] may fall through I am trying to 
obtain a loan here for the purposes of your Brother 
in London. This," says the now desperate financier, 
"is extremely difficult, for those who have money or 
credit in Europe seem to dread every thing that is 
American." He assures John Marshall that he will 
do his utmost. "My anxiety ... [to make good the 
Fairfax purchase] is beyond what I can express." 
Alexander Baring "could supply the money . . . but 
he parries me. He intends soon for the Southward 
I will introduce him to you." * 

The title to the Fairfax estate had been the sub- 
ject of controversy for many years. Conflicting 
grants, overlapping boundaries, sequestration laws, 
the two treaties with Great Britain, were some of 
the elements that produced confusion and uncer- 
tainty in the public mind and especially in the 
minds of those holding lands within the grant. The 
only real and threatening clouds upon the title to the 
lands purchased by the Marshall syndicate, how- 
ever, were the confiscatory laws passed during the 
Revolution 2 which the Treaty of Peace and the Jay 
Treaty nullified. 3 There were also questions grow- 
ing out of grants made by the colonial authorities 
between 1730 and 1736, but these were not weighty. 

The case of Hunter vs. Fairfax, Devisee, involving 
these questions, was pending in the Supreme Court 
of the United States. John Marshall went to Phila- 

1 Morris to John Marshall, Jan. 23, 1797; Morris's Private Letter 
Book; MS., Lib. Cong. 

2 Hening, ix, chap, ix, 377 et seq.; also ib., x, chap, xiv, 66 et seq.; xi, 
chap, xliv, 75-76; xi, chap, xlv, 176 et seq. ; xi, chap, xlvii, 81 et seq. ; xi, 
chap, xxx, 349 et seq. 

v 3 Such effect of these treaties was not yet conceded, however. 



THE MAN AND THE LAWYER 207 

delphia and tried to get the cause advanced and 
decided. He was sadly disappointed at his failure 
and so wrote his brother. "Your Brother has been 
here," writes Morris to his son-in-law, " as you will 
see by a letter from him forwarded by this convey- 
ance. He could not get your case brought forward 
in the Supreme Court of the U. S. at which he was 
much dissatisfied & I am much concerned thereat, 
fearing that real disadvantage will result to your 
concern thereby." l 

The case came on for hearing in regular course 
during the fall term. Hunter, on the death of his 
attorney, Alexander Campbell, prayed the Court, by 
letter, for a continuance, which was granted over the 
protest of the Fairfax attorneys of record, Lee and 
Ingersoll of Philadelphia, who argued that "from 
the nature of the cause, delay would be worse for the 
defendant in error [the Fairfax heir] than a decision 
adverse to his claim." The Attorney-General stated 
that the issue before the Court was "whether . . . 
the defendant in error being an alien can take and 
hold the lands by devise. And it will be contended 
that his title is completely protected by the treaty 
of peace." Mr. Justice Chase remarked: " I recollect 
that ... a decision in favor of such a devisee's title 
was given by a court in Maryland. It is a matter, 
however, of great moment and ought to be delib- 
erately and finally settled." 2 The Marshalls, of 
course, stood in the shoes of the Fairfax devisee; had 
the Supreme Court decided against the Fairfax title, 

1 Morris to James M. Marshall, March 4, 1796; Morris's Private 
Letter Book; MS., Lib. Cong. 

2 Hunter vs. Fairfax, Devisee, 3 Dallas, 303, and footnote. 



208 JOHN MARSHALL 

their contract of purchase would have been nullified 
and, while they would not have secured the estate, they 
would have been relieved of the Fairfax indebtedness. 
It was, then, a very grave matter to the Marshalls, 
in common with all others deriving their titles from 
Fairfax, that the question be settled quickly and 
permanently. 

A year or two before this purchase by the Mar- 
shalls of what remained of the Fairfax estate, more 
than two hundred settlers, occupying other parts of 
it, petitioned the Legislature of Virginia to quiet their 
titles. 1 Acting on these petitions and influenced, 
perhaps, by the controversy over the sequestration 
laws which the Marshall purchase renewed, the 
Legislature in 1796 passed a resolution proposing to 
compromise the dispute by the State's relinquishing 
"all claim to any lands specifically appropriated by 
. . . Lord Fairfax to his own use either by deed or 
actual survey ... if the devises of Lord Fairfax, or 
those claiming under them, will relinquish all claims 
to lands . . . which were waste and unappropriated 
at the time of the death of Lord Fairfax." 2 

Acting for the purchasing syndicate, John Mar- 
shall, in a letter to the Speaker of the House, ac- 
cepted this legislative offer of settlement upon the 
condition that "an act passes during this session 
confirming . . . the title of those claiming under 
Mr. Fairfax the lands specifically appropriated and 

1 Originals in Archives of Virginia State Library. Most of the peti- 
tions were by Germans, many of their signatures being in German 
script. They set forth their sufferings and hardships, their good faith, 
loss of papers, death of witnesses, etc. 

2 Laws of Virginia, Revised Code (1819), i, 352. 



THE MAN AND THE LAWYER 209 

reserved by the late Thomas Lord Fairfax or his 
ancestors for his or their use." * 

"When advised of what everybody then supposed 
to be the definitive settlement of this vexed con- 
troversy, Robert Morris wrote John Marshall that 
"altho' you were obliged to give up a part of your 
claim yet it was probably better to do that than 
to hold a contest with such an opponent [State of 
Virginia]. I will give notice to M' Ja s . Marshall of 
this compromise." 2 John Marshall, now sure of 
the title, and more anxious than ever to consummate 
the deal by paying the Fairfax heir, hastened to 
Philadelphia to see Morris about the money. 

"Your Brother John Marshall Esq 1 ! is now in this 
City," writes Robert Morris to his son-in-law, 
"and his principal business I believe is to see how 
you are provided with Money to pay Lord Fairfax. 

1 Laws of Virginia, Revised Code (1819), i, 352. Marshall's letter 
accepting the proposal of compromise is as follows : — 

"Richmond, November 24th, 1796. 

" Sir, being one of the purchasers of the lands of Mr. Fairfax, and 
authorized to act for them all, I have considered the resolution of the 
General Assembly on the petitions of sundry inhabitants of the coun- 
ties of Hampshire, Hardy, and Shenandoah, and have determined to 
accede to the proposition it contains. 

"So soon as the conveyance shall be transmitted to me from Mr. 
Fairfax, deeds extinguishing his title to the waste and unappropriated 
lands in the Northern Neck shall be executed, provided an act passes 
during this session, confirming, on the execution of such deeds, the 
title of those claiming under Mr. Fairfax the lands specifically appro- 
priated and reserved by the late Thomas Lord Fairfax, or his ances- 
tors, for his or their use. 

"I remain Sir, with much respect and esteem, 

"Your obedient servant, John Marshall. 

"The Honorable, the Speaker of the House of Delegates." 

(Laws of Virginia.) 

2 Morris to John Marshall, Dec. 30, 1796; Morris's Private Letter 
Book; MS., Lib. Cong. 



210 JOHN MARSHALL 

. . . I am so sensible of the necessity there is for your 
being prepared for Lord Fairfax's payment that 
there is nothing within my power that I would not 
do to enable you to meet it." 1 

The members of the Marshall syndicate pressed 
their Philadelphia backer unremittingly, it appears, 
for a few days later he answers what seems to have 
been a petulant letter from Colston assuring that 
partner in the Fairfax transaction that he is doing his 
utmost to "raise the money to enable Mr. James 
Marshall to meet the Payments for your Purchase 
at least so far as it is incumbent on me to supply the 
means. . . . From the time named by John Marshall 
Esq re when here, I feel perfect Confidence, because 
I will furnish him before that period with such Re- 
sources & aid as I think cannot fail." 2 

Finally Marshall's brother negotiated the loan, 
an achievement which Morris found "very pleasing, 
as it enables you to take the first steps with Lord 
Fairfax for securing your bargain." 3 Nearly forty 
thousand dollars of this loan was thus applied. In 
his book of accounts with Morris, James M. Mar- 
shall enters: "Jany 25 '97 To £7700 paid the Rev? 
Denny Fairfax and credited in your [Morris's] ac- 
count with me 7700" (English pounds sterling). 4 

1 Morris to James M. Marshall, Feb. 10, 1797; Morris's Private 
Letter Book; MS., Lib. Cong. Morris adds that "I mortgaged to 
Col? Hamilton 100,000 acres of Genesee Lands to secure payment 
of $75,000 to Mr. Church in five years. This land is worth at this 
moment in Cash two Dollars pr Acre." 

2 Morris to Colston, Feb. 25, 1797; ib. 

3 Morris to James M. Marshall, April 27, 1797; ib. 

4 MS. The entry was made in Amsterdam and Morris learned of 
the loan three months afterwards. 




PAGE OF JAMES MARSHALL'S ACCOUNT WITH ROBERT MORRIS 

SHOWING PAYMENT OF £7700 TO FAIRFAX 

( Facsimile) 



THE MAN AXD THE LAWYER 211 

The total amount which the Marshalls had agreed 
to pay for the remnant of the Fairfax estate was 
"fourteen thousand pounds British money." * When 
Robert Morris became bankrupt, payment of the 
remainder of the Fairfax indebtedness fell on the 
shoulders of Marshall and his brother. 

This financial burden caused Marshall to break 
his rule of declining office and to accept appoint- 
ment as one of our envoys to France at the time of 
Robert Morris's failure and imprisonment for debt; 
for from that public employment of less than one 
year, Marshall, as we shall see, received in the sorely 
needed cash, over and above his expenses, three 
times the amount of his annual earnings at the bar. 2 
"Mr. John Marshall has said here," relates Jeffer- 
son after Marshall's return, "that had he not been 
appointed minister [envoy] to France, he was desper- 
ate in his affairs and must have sold his estate [the 
Fairfax purchase] & that immediately. That that 
appointment was the greatest God-send that could 
ever have befallen a man." 3 Jefferson adds: "I have 
this from J. Brown and S. T. Mason [Senator 
Mason]." 4 

1 Records at Large in Clerk's Office of Circuit Court of Fau- 
quier County, Virginia, 200 et seq. The deed was not filed until 
1808, at which time, undoubtedly, the Marshalls made their last pay- 
ment. 

2 See infra, chap. vin. It was probably this obligation too, that 
induced Marshall, a few years later, to undertake the heavy task 
of writing the Life of Washington, quite as much as his passion- 
ate devotion to that greatest of Americans. (See vol. m of this 
work.) 

3 "Anas," March 21, 1800; Works: Ford, i, 355. 

4 lb. Misleading as Jefferson's " Anas " is, his information in this 
matter was indisputably accurate. 



212 JOHN MARSHALL 

So it was that Marshall accepted a place on the 
mission to France 1 when it was offered to him by 

1 See infra, chap. VI. A short time before the place on the French 
mission was tendered Marshall, his father in Kentucky resigned the 
office of Supervisor of Revenue for the District of Ohio. In his letter 
of resignation Thomas Marshall gives a resume of his experiences as 
an official under Washington's Administrations. Since this is one of 
the only two existing letters of Marshall's father on political sub- 
jects, and because it may have turned Adams's mind to John Mar- 
shall, it is worthy of reproduction: — 

Sir, 

Having determined to resign my Commission as Supervisor of 
whe Revenue for the district of Ohio, on the 30th day of June next, 
which terminates the present fiscal year, I have thought it right to 
give this timely notice to you as President of the United States, in 
whom the nomination and appointment of my successor is vested; in 
order that you may in the meantime select some fit person to fill the 
office. You will therefore be pleased to consider me as out of office on 
the first day of July ensuing. 

It may possibly be a subject of enquiry, why, after holding the 
office during the most critical & troublesome times, I should now 
resign it, when I am no longer insulted, and abused, for endeavoring 
to execute the Laws of my Country — when those Laws appear to be, 
more than formerly, respected — and when the probability is, that in 
future they may be carried into effect with but little difficulty? 

In truth this very change, among other considerations, furnishes a 
reason for the decision I have made. For having once engaged in the 
business of revenue I presently found myself of sufficient importance 
with the enemies of the Government here to be made an object of 
their particular malevolence — and while this was the case, I was de- 
termined not to be driven from my post. 

At this time, advanced in years and declining in health, I find my- 
self unfit for the cares, and active duties of the office; and therefore 
cheerfully resign a situation, which I at first accepted and afterwards 
held, more from an attachment to the Government, than from any 
pecuniary consideration, to be filled by some more active officer, as 
still more conducive to the public service. 

To the late President I had the honor of being known, and combined, 
with respect and veneration for his public character, the more social 
and ardent affections of the man, and of the friend. 

You Sir I have not the honor to know personally, but you have filled 
too many important stations in the service of your country; & fame 
has been too busy with your name to permit me to remain ignorant of 



THE MAN AND THE LAWYER 213 

Adams, who "by a miracle," as Hamilton said, had 
been elected President. 1 

your character; for which in all its public relations permit me to say, 
I feel the most entire respect and esteem: Nor is it to me among the 
smallest motives for my rejoicing that you are the President; and of 
my attachment to your administration to know that you have ever 
been on terms of friendship with the late President — that you have 
approved his administration, — and that you propose to yourself his 
conduct as an example for your imitation. 

On this occasion I may say without vanity that I have formerly and 
not infrequently, given ample testimony of my attachment to Republi- 
can Government, to the peace, liberty and happiness of my country 
and that it is not now to be supposed that I have changed my prin- 
ciples — or can esteem those who possess different ones. 

And altho' I am too old [Thomas Marshall was nearly sixty-five 
years of age when he wrote this letter] and infirm for active services, 
(for which I pray our country may not feel a call) yet my voice shall 
ever be excited in opposition to foreign influence, (from whence the 
greatest danger seems to threaten, as well as against internal foes) 
and in support of a manly, firm, and independent, exercise of those 
constitutional rights, which belong to the President, and Government 
of the United States. And, even opinions, have their effect. 
I am Sir with the most 

John Adams, Esq. entire respect and esteem 

President of the Your very humble Servt, 

United States. T. Marshall. 

(Thomas Marshall to Adams, April 28, 1797; MS., Dept. of State.) 

1 See infra, chaps, xi and xii. 



CHAPTER VI 

ENVOY TO FRANCE 

My dearest life, continue to write to me, as my heart clings with delight only 

to what comes from you. (Marshall to his wife.) 

He is a plain man, very sensible and cautious. (Adams.) 

Our poor insulted country has not before it the most flattering prospects. 

(Marshall at Antwerp.) 

"Philadelphia July 2 nd 1797. 

"My dearest Polly 

"I am here after a passage up the bay from Balti- 
more ... I dined on Saturday in private with the 
President whom I found a sensible plain candid good 
tempered man & was consequently much pleased 
with him. I am not certain when I shall sail. ... So 
you . . . my dearest life continue to write to me as 
your letters will follow me should I be gone before 
their arrival & as my heart clings with real pleasure 
& delight only to what comes from you. I was on 
friday evening at the faux hall of Philadelphia. . . . 
The amusements were walking, sitting, punch ice 
cream etc Music & conversation. . . . Thus my 
dearest Polly do I when not engaged in the very 
serious business which employs a large portion of my 
time endeavor by a-[muse]ments to preserve a mind 
at ease & [keep] it from brooding too much over my 
much loved & absent wife. By all that is dear on 
earth, I entreat you to do the same, for separation 
will not I trust be long & letters do everything to draw 
its sting I am my dearest life your affectionate 

"J Marshall." 1 

1 Marshall to his wife, July 2, 1797; MS. 



^^wiyiU-^ t^-c^u^ ^t^c^TS^ 

FIRST PAGE OF A LETTER FROM JOHN MARSHALL TO HIS WIFE 

(.Facsimile) 



ENVOY TO FRANCE 215 

So wrote John Marshall at the first stage of his 
journey upon that critical diplomatic mission which 
was to prove the most dramatic in our history and 
which was to be the turning-point in Marshall's life. 
From the time when Mary Ambler became his bride 
in 1783, Marshall had never been farther away from 
his Richmond home than Philadelphia, to which 
city he had made three flying visits in 1796, one to 
argue the British Debts case, the other two to see 
Robert Morris on the Fairfax deal and to hasten 
the decision of the Supreme Court in that contro- 
versy. 

But now Marshall was to cross the ocean as one 
of the American envoys to "the terrible Republic" 
whose "power and vengeance" everybody dreaded. 1 
He was to go to that now arrogant Paris whose 
streets were resounding with the shouts of French 
victories. It was the first and the last trans-Atlantic 
voyage Marshall ever undertook; and although he 
was to sail into a murky horizon to grapple with vast 
difficulties and unknown dangers, yet the mind of 
the home-loving Virginian dwelt more on his Rich- 
mond fireside than on the duties and hazards before 
him. 

Three days after his arrival at Philadelphia, im- 
pressionable as a boy, he again writes to his wife: 
"My dearest Polly I have been extremely chagrined 
at not having yet received a letter from you. I hope 
you are well as I hear nothing indicating the contrary 
but you know not how solicitous how anxiously so- 
licitous I am to hear it from yourself. Write me that 

1 Sedgwick to King, June 24, 1797; King, ii, 192. 



216 JOHN MARSHALL 

you are well & in good spirits & I shall set out on my 
voyage with a lightened heart . . . you will hear 
from me more than once before my departure." 

The Virginia envoy was much courted at Phila- 
delphia before he sailed. "I dined yesterday," Mar- 
shall tells his wife, "in a very large company of 
Senators & members of the house of representatives 
who met to celebrate the 4th of July. The company 
was really a most respectable one & I experienced 
from them the most flattering attention. I have 
much reason to be satisfied & pleased with the 
manner in which I am received here." But flattery 
did not soothe Marshall — "Something is wanting 
to make me happy," he tells his "dearest Polly." 
"Had I my dearest wife with me I should be de- 
lighted indeed." 1 

Washington had sent letters in Marshall's care 
to acquaintances in France commending him to 
their attention and good offices; and the retired 
President wrote Marshall himself a letter of hearty 
good wishes. "Receive sir," replies Marshall, "my 
warm & grateful acknowledgments for the polite &, 
allow me to add, friendly wishes which you express 
concerning myself as well as for the honor of being 
mentioned in your letters." 2 

A less composed man, totally unpracticed as Mar- 
shall was in diplomatic usages, when embarking on 
an adventure involving war or peace, would have 
occupied himself constantly in preparing for the vast 
business before him. Not so Marshall. While waiting 

1 Marshall to his wife, July 5, 1797; MS. 

2 Marshall to Washington, July 7, 1797; MS., Lib. Cong. 



ENVOY TO FRANCE 217 

for his ship, he indulged his love of the theater. 
Again he tells his wife how much he misses her. "I 
cannot avoid writing to you because while doing so I 
seem to myself to be in some distant degree enjoying 
your company. I was last night at the play & saw the 
celebrated Mrs. Mary in the character of Juliet. She 
performs that part to admiration indeed but I really 
do not think Mrs. Westig is far her inferior in it. I 
saw," gossips Marshall, "Mrs. Heyward there. I 
have paid that lady one visit to one of the most de- 
lightful & romantic spots on the river Schuylkil. 
. . . She expressed much pleasure to see me & has 
pressed me very much to repeat my visit. I hope I 
shall not have time to do so." 

Marshall is already bored with the social life of 
Philadelphia. "I am beyond expression impatient 
to set out on the embassy," he informs his wife. " The 
life I lead here does not suit me I am weary of it I 
dine out every day & am now engaged longer I hope 
than I shall stay. This disipated life does not long 
suit my temper. 1 like it very well for a day or two 
but I begin to require a frugal repast with good cold 
water " — There was too much wine, it would seem, 
at Philadelphia to suit Marshall. 

" I would give a great deal to dine with you to day 
on a piece of cold meat with our boys beside us to 
see Little Mary running backwards & forwards over 
the floor playing the sweet little tricks she [is] 
full of. ... I wish to Heaven the time which must 
intervene before I can repass these delightful scenes 
was now terminated & that we were looking back on 
our separation instead of seeing it before us. Fare- 



218 JOHN MARSHALL 

well my dearest Polly. Make yourself happy & you 
will bless your ever affectionate 

" J. Marshall." x 

If Marshall was pleased with Adams, the Presi- 
dent was equally impressed with his Virginia envoy 
to France. "He [Marshall] is a plain man very sen- 
sible, cautious, guarded, and learned in the law of 
nations. 2 I think you will be pleased with him," 3 
Adams writes Gerry, who was to be Marshall's 
associate and whose capacity for the task even his 
intimate personal friend, the President, already dis- 
trusted. Hamilton was also in Philadelphia at the 
time 4 — a circumstance which may or may not have 
been significant. It was, however, the first time, so 
far as definite evidence attests, that these men had 
met since they had been comrades and fellow offi- 
cers in the Revolution. 

The "Aurora," the leading Republican newspaper, 
was mildly sarcastic over Marshall's ignorance of the 
French language and general lack of equipment for 
his diplomatic task. "Mr. Marshall, one of our 
extra envoys to France, will be eminently qualified 
for the mission by the time he reaches that coun- 
try," says the "Aurora." Some official of great legal 
learning was coaching Marshall, it seems, and ad- 
vised him to read certain monarchical books on the 
old France and on the fate of the ancient republics. 

1 Marshall to his wife, July 11, 1797; MS. 

2 This, of course, was untrue, at that time. Marshall probably 
listened with polite interest to Adams, who was a master of the sub- 
ject, and agreed with him. Thus Adams was impressed, as is the way 
of human nature. 

3 Adams to Gerry, July 17, 1797; Works: Adams, viii, 549. 

4 Aurora, July 17, 1797. 



ENVOY TO FRANCE 219 

The "Aurora" asks "whether some history of 
France since the overthrow of the Monarchy would 
not have been more instructive to Mr. Marshall. 
The Envoy, however," continues the "Aurora," 
"approved the choice of his sagacious friend, but 
very shrewdly observed ' that he must first purchase 
Chambaud's grammar, English and French.' We 
understand that he is a very apt scholar, and no 
doubt, during the passage, he will be able to acquire 
enough of the French jargon for all the purposes of 
the embassy." x 

Having received thirty-five hundred dollars for 
his expenses, 2 Marshall set sail on the brig Grace 
for Amsterdam where Charles Cotesworth Pinck- 
ney, the expelled American Minister to France and 
head of the mission, awaited him. As the land faded, 
Marshall wrote, like any love-sick youth, another 
letter to his wife which he sent back by the pilot. 

"The land is just escaping from my view," writes 
Marshall to his "dearest Polly"; "the pilot is about 
to leave us & I hasten from the deck into the cabin 
once more to give myself the sweet indulgence of 
writing to you. . . . There has been so little wind 
that we are not yet entirely out of the bay. It is so 
wide however that the land has the appearance of a 
light blue cloud on the surface of the water & we 
shall very soon lose it entirely." 

Marshall assures his wife that his "cabin is neat 
& clean. My berth a commodious one in which I 

1 Aurora, July 19, 1797. For documents given envoys by the Gov- 
ernment, see Am. St. Prs., For. Rel., Class I, ii, 153. 

3 Marshall to Secretary of State, July 10, 1797; Memorandum by 
Pickering; Pickering MSS., in Proc, Mass. Hist. Soc, xxi, 177. 



220 JOHN MARSHALL 

have my own bed & sheets of which I have a plenty 
so that I lodge as conveniently as I could do in any 
place whatever & I find I sleep very soundly altho 
on water." He is careful to say that he has plenty of 
creature comforts. "We have for the voyage, the 
greatest plenty of salt provisions live stock & poul- 
try & as we lay in our own liquors I have taken care 
to provide myself with a plenty of excellent porter 
wine & brandy. The Captain is one of the most 
obliging men in the world & the vessel is said by 
every body to be a very fine one." 

There were passengers, too, who suited Marshall's 
sociable disposition and who were "well disposed to 
make the voyage agreeable. ... I have then my 
dearest Polly every prospect before me of a passage 
such as I could wish in every respect but one . . . 
fear of a lengthy passage. We have met in the bay 
several vessels. One from Liverpool had been at sea 
nine weeks, & the others from other places had been 
proportionately long. ... I shall be extremely im- 
patient to hear from you & our dear children." 

Marshall tells his wife how to direct her letters to 
him, "some ... by the way of London to the care of 
Ruf us King esquire our Minister there, some by the 
way of Amsterdam or the Hague to the care of Wil- 
liam Vanns [sic] Murr[a]y esquire our Minister at the 
Hague & perhaps some directed to me as Envoy 
extraordinary of the United States to the French 
Republic at Paris. 

"Do not I entreat you omit to write. Some of 
your letters may miscarry but some will reach me & 
my heart can feel till my return no pleasure com^ 



ENVOY TO FRANCE -221 

parable to what will be given it by a line from 
you telling me that all remains well. Farewell my 
dearest wife. Your happiness will ever be the first 
prayer of your unceasingly affectionate 

"J Marshall." * 

So fared forth John Marshall upon the adventure 
which was to open the door to that historic career 
that lay just beyond it; and force him, against his will 
and his life's plans, to pass through it. But for this 
French mission, it is certain that Marshall's life would 
have been devoted to his law practice and his private 
affairs. He now was sailing to meet the ablest and 
most cunning diplomatic mind in the contemporary 
world whose talents, however, were as yet known 
to but few; and to face the most venal and ruth- 
less governing body of any which then directed the 
affairs of the nations of Europe. Unguessed and un- 
expected by the kindly, naive, and inexperienced 
Richmond lawyer were the scenes about to unroll 
before him; and the manner of his meeting the emer- 
gencies so soon to confront him was the passing of 
the great divide in his destiny. 

Even had the French rulers been perfectly honest 
and simple men, the American envoys would have 
had no easy task. For American-French affairs were 
sadly tangled and involved. Gouverneur Morris, our 
first Minister to France under the Constitution, had 
made himself unwelcome to the French Revolution- 
ists; and to placate the authorities then reigning in 
Paris, Washington had recalled Morris and appointed 

1 Marshall to his wife, " The Bay of Delaware," July 20, 1797; 

MS. 



m JOHN MARSHALL 

Monroe in his place "after several attempts had 
failed to obtain a more eligible character." l 

Monroe, a partisan of the Revolutionists, had be- 
gun his mission with theatrical blunders; and these 
he continued until his recall, 2 when he climaxed his 
imprudent conduct by his attack on Washington. 3 
During most of his mission Monroe was under the 
influence of Thomas Paine, 4 who had then become 
the venomous enemy of Washington. 

Monroe had refused to receive from his fellow 
Minister to England, John Jay, "confidential in- 
formal statements" as to the British treaty which 
Jay prudently had sent him by word of mouth 
only. When the Jay Treaty itself arrived, Monroe 

1 Washington's remarks on Monroe's "View"; Writings: Ford, 
xiii, 452. 

2 See McMaster, ii, 257-59,319,370. But Monroe, although shal- 
low, was well meaning; and he had good excuse for over-enthusiasm; 
for his instructions were: "Let it be seen that in case of a war with 
any nation on earth, we shall consider France as our first and natural 
ally." {Am. St. Prs., For. Rel, Class I, ii, 6G9.) 

3 "View of the Conduct of the Executive of the United States, 
etc.," by James Monroe (Philadelphia, Bache, Publisher, 1797). This 
pamphlet is printed in full in Monroe's Writings: Hamilton, iii, as 
an Appendix. 

Washington did not deign to notice Monroe's attack publicly; but 
on the margin of Monroe's book answered every point. Extracts from 
Monroe's "View" and Washington's comments thereon are given in 
Washington's Writings: Ford, xiii, 452-90. 

Jefferson not only approved but commended Monroe's attack on 
Washington. (See Jefferson to Monroe, Oct. 25, 1797; Works: Ford, 
viii, 344-46.) It is more than probable that he helped circulate it. 
(Jefferson to Eppes, Dec. 21, 1797; ib., 347; and to Madison, Feb. 8, 
1798; ib., 362; see also Jefferson to Monroe, Dec. 27; ib., 350. "Your 
book was later coming than was to have been wished: however it 
works irresistibly. It would have been very gratifying to you to hear 
the unqualified eulogies ... by all who are not hostile to it from 
principle.") 

4 Ticknor, ii, 113. 



EXYOY TO FRANCE 223 

publicly denounced the treaty as "shameful," x a 
grave indiscretion in the diplomatic representative 
of the Government that had negotiated the offending 
compact. 

Finally Monroe was recalled and Washington, 
after having offered the French mission to John 
Marshall, appointed Charles Cotesworth Pinckney 
of South Carolina as his successor. The French 
Revolutionary authorities had bitterly resented the 
Jay compact, accused the American Government 
of violating its treaty with France, denounced the 
United States for ingratitude, and abused it for 
undue friendship to Great Britain. 

In all this the French Directory had been and still 
was backed up by the Republicans in the United 
States, who, long before this, had become a distinctly 
French party. Thomas Paine understated the case 
when he described "the Republican party in the 
United States" as "that party which is the sincere 
ally of France." 2 

The French Republic was showing its resentment 
by encouraging a piratical warfare by French priva- 
teers upon American commerce. Indeed, vessels of 
the French Government joined in these depreda- 
tions. In this way, it thought to frighten the United 
States into taking the armed side of France against 
Great Britain. The French Republic was emulating 
the recent outrages of that Power; and, except that 

1 For a condensed but accurate and impartial statement of Mon- 
roe's conduct while Minister, see Gilman: James Monroe (American 
Statesmen Series), 36-73. 

2 Paine to editors of the Bien-Informi, Sept. 27, 1797; Writings: 
Conway, iii, 368-69. 



224 JOHN MARSHALL 

the French did not impress Americans into their 
service, as the British had done, their Government 
was furnishing to America the same cause for war 
that Great Britain had so brutally afforded. 

In less than a year and a half before Marshall 
sailed from Philadelphia, more than three hundred 
and forty American vessels had been taken by French 
privateers. 1 Over fifty -five million dollars' worth of 
American property had been destroyed or confiscated 
under the decrees of the Directory. 2 American sea- 
men, captured on the high seas, had been beaten and 
imprisoned. The officers and crew of a French armed 
brig tortured Captain Walker, of the American ship 
Cincinnatus, four hours by thumbscrews. 3 

When Monroe learned that Pinckney had been 
appointed to succeed him, he began a course of in- 
sinuations to his French friends against his suc- 
cessor; branded Pinckney as an "aristocrat"; and 
thus sowed the seeds for the insulting treatment the 
latter received upon his appearance at the French 
Capital. 4 Upon Pinckney's arrival, the French Di- 
rectory refused to receive him, threatened him with 
arrest by the Paris police, and finally ordered the 
new American Minister out of the territory of the 
Republic. 6 

To emphasize this affront, the Directory made a 
great ado over the departure of Monroe, who re- 

1 Am. St. Prs., For. Rel, ii, 55-63. 

8 See condensed summary of the American case in instructions to 
Pinckney, Marshall, and Gerry; ib., 153-57. 

3 76., 64; and for numerous other examples see ib., 28-64. 

* Ticknor, ii, 113. 

6 Pinckney to Secretary of State, Amsterdam, Feb. 18, 1797; Am. 
St. Prs., For. Rel., vii, 10. 



ENVOY TO FRANCE 225 

sponded with a characteristic address. To this 
speech Barms, then President of the Directory, re- 
plied in a harangue insulting to the American Gov- 
ernment; it was, indeed, an open appeal to the Amer- 
ican people to repudiate their own Administration, 1 
of the same character as, and no less offensive than, 
the verbal performances of Genet. 

And still the outrages of French privateers on 
American ships continued with increasing fury. 2 
The news of Pinckney's treatment and the speech 
of Barras reached America after Adams's inaugura- 
tion. The President promptly called Congress into 
a special session and delivered to the National Legis- 
lature an address in which Adams appears at his 
best. 

The "refusal [by the Directory] ... to receive 
him [Pinckney] until we had acceded to their de- 
mands without discussion and without investigation, 
is to treat us neither as allies nor as friends, nor 
as a sovereign state," said the President; who con- 
tinued : — 

"The speech of the President [Barras] discloses 
sentiments more alarming than the refusal of a 
minister [Pinckney], because more dangerous to our 
independence and union. . . . 

"It evinces a disposition to separate the people of 
the United States from the government, to persuade 
them that they have different affections, principles 
and interests from those of their fellow citizens whom 
they themselves have chosen to manage their com- 

1 See Barras's speech in Am. St. Prs., For. Rel., ii, 12. 
1 See Allen: Naval War with France, 81-33. 



226 JOHN MARSHALL 

mon concerns and thus to produce divisions fatal to 
our peace. 

"Such attempts ought to be repelled with a de- 
cision which shall convince France and the world that 
we are not a degraded people, humiliated under a 
colonial spirit of fear and sense of inferiority, fitted 
to be the miserable instruments of foreign influence, 
and regardless of national honor, character, and 
interest. 

"I should have been happy to have thrown a veil 
over these transactions if it had been possible to 
conceal them; but they have passed on the great 
theatre of the world, in the face of all Europe and 
America, and with such circumstances of publicity 
and solemnity that they cannot be disguised and will 
not soon be forgotten. They have inflicted a wound 
in the American breast. It is my sincere desire, how- 
ever, that it may be healed." 

Nevertheless, so anxious was President Adams for 
peace that he informed Congress: "I shall insti- 
tute a fresh attempt at negotiation. ... If we have 
committed errors, and these can be demonstrated, 
we shall be willing to correct them; if we have done 
injuries, we shall be willing on conviction to re- 
dress them; and equal measures of justice we have 
a right to expect from France and every other na- 
tion." 1 

Adams took this wise action against the judgment 
of the Federalist leaders, 2 who thought that, since 
the outrages upon American commerce had been 

1 Adams, Message to Congress, May 16, 1797; Richardson, i, 
235-36; also, Works: Adams, ix, 111-18. 

2 Gibbs, ii, 171-72. 



ENVOY TO FRANCE 227 

committed by France and the formal insult to our 
Minister had been perpetrated by France, the ad- 
vances should come from the offending Government. 
Technically, they were right; practically, they were 
wrong. Adams's action was sound as well as noble 
statesmanship. 

Thus came about the extraordinary mission, of 
which Marshall was a member, to adjust our dif- 
ferences with the French Republic. The President 
had taken great care in selecting the envoys. He 
had considered Hamilton, Jefferson, and Madison, 1 
for this delicate and fateful business; but the two lat- 
ter, for reasons of practical politics, would not serve, 
and without one of them, Hamilton's appointment 
was impossible. Pinckney, waiting at Amsterdam, 
was, of course, to head the commission. Finally 
Adams's choice fell on John Marshall of Virginia 
and Francis Dana, Chief Justice of the Supreme 
Court of Massachusetts; and these nominations were 
confirmed by the Senate. 2 

But Dana declined, 3 and, against the unanimous 
advice of his Cabinet, 4 Adams then nominated El- 
bridge Gerry, who, though a Republican, had, on 
account of their personal relations, voted for Adams 
for President, apologizing, however, most humbly to 
Jefferson for having done so. 5 

No appointment could have better pleased that 
unrivaled politician. Gerry was in general agree- 

1 Hamilton proposed Jefferson or Madison. (Hamilton to Picker- 
ing, March 22, 1797; Lodge: Cabot, 101.) 

2 Works: Adams, ix, 111-18. 3 lb. 
4 Gibbs, i, 467, 469, and footnote to 530-31. 

6 Austin: Gerry, ii, 134-35. 



228 JOHN MARSHALL 

ment with Jefferson and was, temperamentally, an 
easy instrument for craft to play upon, When Gerry 
hesitated to accept, Jefferson wrote his "dear 
friend" that "it was with infinite joy to me that you 
were yesterday announced to the Senate" as one of 
the envoys; and he pleaded with Gerry to under- 
take the mission. 1 

The leaders of the President's party in Congress 
greatly deplored the selection of Gerry. "No ap- 
pointment could . . . have been more injudicious," 
declared Sedgwick. 2 "If, sir, it was a desirable thing 
to distract the mission, a fitter person could not, 
perhaps, be found. It is ten to one against his agree- 
ing with his colleagues," the Secretary of War ad- 
vised the President. 3 Indeed, Adams himself was 
uneasy about Gerry, and in a prophetic letter sought 
to forestall the very indiscretions which the latter 
afterwards committed. 

"There is the utmost necessity for harmony, com- 
plaisance, and condescension among the three en- 
voys, and unanimity is of great importance," the 
President cautioned Gerry. "It is," said Adams, 
"my sincere desire that an accommodation may 
take place; but our national faith, and the honor 
of our government, cannot be sacrificed. You have 
known enough of the unpleasant effects of disunion 
among ministers to convince you of the necessity of 
avoiding it, like a rock or quicksand. ... It is prob- 

1 Jefferson to Gerry, June 21, 1797; Works: Ford, viii, 314. This 
letter flattered Gerry's vanity and nullified Adams's prudent advice 
to him given a few days later. (See infra.) 

2 Sedgwick to King, June 24, 1797; King, ii, 193. 

8 McHenry to Adams, in Cabinet meeting, 1797; Steiner, 224. 




^ t 



ENVOY TO FRANCE 229 

able there will be manoeuvres practiced to excite 
jealousies among you." 1 

Forty-eight days after Marshall took ship at 
Philadelphia, he arrived at The Hague. 2 The long 
voyage had been enlivened by the sight of many 
vessels and the boarding of Marshall's ship three 
times by British men-of-war. 

"Until our arrival in Holland," Marshall writes 
Washington, "we saw only British & neutral ves- 
sels. This added to the blockade of the dutch fleet in 
the Texel, of the french fleet in Brest & of the Span- 
ish fleet in Cadiz, manifests the entire dominion 
which one nation [Great Britain] at present pos- 
sesses over the seas. 

"By the ships of war which met us we were three 
times visited & the conduct of those who came on 
board was such as wou'd proceed from general orders 
to pursue a system calculated to conciliate America. 

"Whether this be occasion'd by a sense of justice 
& the obligations of good faith, or solely by the 
hope that the perfect contrast which it exhibits to 
the conduct of France may excite keener sensations 

1 Adams to Gerry, July 8, 1797; Works: Adams, viii, 547-48. 
Nine days later the President again admonishes Gerry. While ex- 
pressing confidence in him, the President tells Gerry that "Some 
have expressed . . . fears of an unaccommodating disposition [in 
Gerry] and others of an obstinacy that will risk great things to se- 
cure small ones. 

"Some have observed that there is, at present, a happy and per- 
fect harmony among all our ministers abroad, and have expressed ap- 
prehension that your appointment might occasion an interruption of 
it." (Adams to Gerry, July 17, 1797; ib., 549.) 

2 Marshall took the commission and instructions of John Quincy 
Adams as the American Minister to Prussia (Writings, J. Q. A.: Ford, 
ii, footnote to 216), to which post the younger Adams had been ap- 
pointed by Washington because of his brilliant "Publicola" essays. 



230 JOHN MARSHALL 

at that conduct, its effects on our commerce is the 
same." 1 

It was a momentous hour in French history when 
the Virginian landed on European soil. The French 
elections of 1797 had given to the conservatives a 
majority in the National Assembly, and the Direc- 
tory was in danger. The day after Marshall reached 
the Dutch Capital, the troops sent by Bonaparte, 
that young eagle, his pinions already spread for his 
imperial flight, achieved the revolution of the 18th 
Fractidor (4th of September); gave the ballot- 
shaken Directory the support of bayonets; made it, 
in the end, the jealous but trembling tool of the 
youthful conqueror; and armed it with a power 
through which it nullified the French elections and 
cast into prison or drove into exile all who came 
under its displeasure or suspicion. 

With Lodi, Areola, and other laurels upon his 
brow, the Corsican already had begun his aston- 
ishing career as dictator of terms to Europe. The 
native Government of the Netherlands had been 
replaced by one modeled on the French system; 
and the Batavian Republic, erected by French arms, 
had become the vassal and the tool of Revolutionary 
France. 

Three days after his arrival at The Hague, Mar- 
shall writes his wife of the safe ending of his voyage 
and how "very much pleased" he is with Pinckney, 
whom he "immediately saw." They were waiting 
"anxiously" for Gerry, Marshall tells her. "We 

1 Marshall, to Washington, The Hague, Sept. 15, 1797; Wash- 
ington MSS., Lib. Cong. See citations ib., infra. (Sparks MSS., Proc 
Mass. Hist. Soc, Ixvi; also Amer. Hist. Rev., ii, no. 2, Jan., 1797.) 



ENVOY TO FRANCE 231 

shall wait a week or ten days longer & shall then 
proceed on our journey [to Paris]. You cannot con- 
ceive (yes you can conceive) how these delays per- 
plex & mortify me. I fear I cannot return until the 
spring & that fear excites very much uneasiness & 
even regret at my having ever consented to cross the 
Atlantic. I wish extremely to hear from you & to 
know your situation. My mind clings so to Rich- 
mond that scarcely a night passes in which during 
the hours of sleep I have not some interesting con- 
versation with you or concerning you." 

Marshall tells his "dearest Polly" about the ap- 
pearance of The Hague, its walks, buildings, and "a 
very extensive wood adjoining the city which ex- 
tends to the sea," and which is "the pride & boast of 
the place." "The society at the Hague is probably 
very difficult, to an American it certainly is, & I 
have no inclination to attempt to enter into it. While 
the differences with France subsist the political char- 
acters of this place are probably unwilling to be 
found frequently in company with our countrymen. 
It might give umbrage to France." Pinckney had 
with him his wife and daughter, "who," writes Mar- 
shall, "appears to be about 12 or 13 years of age. 
Mrs. Pinckney informs me that only one girl of her 
age has visited her since the residence of the family 
at the Hague. 1 In fact we seem to have no com- 
munication but with Americans, or those who are 
employed by America or who have property in our 
country." 

1 Pinckney and his family had been living in Holland for almost 
seven months. (Pinckney to Pickering, Feb. 8, 1797; Am. St. Prs., 
For. Rel., ii, 10.) 



232 JOHN MARSHALL 

While at The Hague, Marshall yields, as usual, to 
his love for the theater, although he cannot under- 
stand a word of the play. "Near my lodgings is a 
theatre in which a french company performs three 
times a week," he tells his wife. "I have been fre- 
quently to the play & tho' I do not understand the 
language I am very much amused at it. The whole 
company is considered as having a great deal of 
merit but there is a Madame de Gazor who is con- 
sidered as one of the first performers in Paris who 
bears the palm in the estimation of every person." 

Marshall narrates to his wife the result of the 
coup d'etat of September 4. "The Directory," he 
writes, "with the aid of the soldiery have just put in 
arrest the most able & leading members of the legis- 
lature who were considered as moderate men & 
friends of peace. Some conjecture that this event 
will so abridge our negotiations as probably to oc- 
casion my return to America this fall. A speedy re- 
turn is my most ardent wish but to have my return 
expedited by the means I have spoken of is a cir- 
cumstance so calamitous that I deprecate it as the 
greatest of evils. Remember me affectionately to 
our friends & kiss for me our dear little Mary. Tell 
the boys how much I expect from them & how anx- 
ious I am to see them as well as their beloved mother. 
I am my dearest Polly unalterably your 

"J Marshall." 1 

1 Marshall to his wife, The Hague, Sept. 9, 1797, MS. Marshall's 
brother had been in The Hague July 30, but had gone to Berlin. Vans 
Murray to J. Q. Adams, July 30, 1797; Letters: Ford, 358. Apparently 
the brothers did not meet, notwithstanding the critical state of tL3 
Fairfax contract. 



ENVOY TO FRANCE 233 

The theaters and other attractions of The Hague 
left Marshall plenty of time, however, for serious 
and careful investigations. The result of these he 
details to Washington. The following letter shows 
not only Marshall's state of mind just before starting 
for Paris, but also the effect of European conditions 
upon him and how strongly they already were con- 
firming Marshall's tendency of thought so firmly 
established by every event of his life since our War 
for Independence: — 

"Tho' the face of the country [Holland] still ex- 
hibits a degree of wealth & population perhaps un- 
equal' d in any other part of Europe, its decline is 
visible. The great city of Amsterdam is in a state of 
blockade. More than two thirds of its shipping lie 
unemploy'd in port. Other seaports suffer tho' not in 
so great a degree. In the meantime the requisitions 
made [by the French] upon them [the Dutch] are 
enormous. . . . 

"It is supposed that France has by various means 
drawn from Holland about 60,000,000 of dollars. 
This has been paid, in addition to the national ex- 
penditures, by a population of less than 2,000,000. 
. . . Not even peace can place Holland in her for- 
mer situation. Antwerp will draw from Amsterdam 
a large portion of that commerce which is the great 
source of its wealth; for Antwerp possesses, in the 
existing state of things, advantages which not even 
weight of capital can entirely surmount." 

Marshall then gives Washington a clear and strik- 
ing account of the political happenings among the 
Dutch under French domination : — 



234 JOHN MARSHALL 

"The political divisions of this country & its un- 
certainty concerning its future destiny must also 
have their operation. . . . 

"A constitution which I have not read, but which 
is stated to me to have contain' d all the great funda- 
mentals of a representative government, & which 
has been prepar'd with infinite labor, & has expe- 
rienc'd an uncommon length of discussion was re- 
jected in the primary assemblies by a majority of 
nearly five to one of those who voted. . . . 

"The substitute wish'd for by its opponents is a 
legislature with a single branch having power only 
to initiate laws which are to derive their force from 
the sanction of the primary assemblies. I do not 
know how they wou'd organize it. . . . It is remark- 
able that the very men who have rejected the form 
of government propos'd to them have reelected a 
great majority of the persons who prepar'd it & will 
probably make from it no essential departure. . . . 
It is worthy of notice that more than two thirds of 
those entitled to suffrage including perhaps more 
than four fifths of the property of the nation & who 
wish'd, as I am told, the adoption of the consti- 
tution, withheld their votes. . . . 

"Many were restrain'd by an unwillingness to 
take the oath required before a vote could be re- 
ceiv'd; many, disgusted with the present state of 
things, have come to the unwise determination of 
revenging themselves on those whom they charge 
with having occasion'd it by taking no part what- 
ever in the politics of their country, & many seem 
to be indifferent to every consideration not im- 



ENVOY TO FRANCE 235 

mediately connected with their particular employ- 
ments." 

Holland's example made the deepest impression 
on Marshall's mind. What he saw and heard forti- 
fied his already firm purpose not to permit America, 
if he could help it, to become the subordinate or 
ally of any foreign power. The concept of the Ameri- 
can people as a separate and independent Nation 
unattached to, unsupported by, and unafraid of any 
other country, which was growing rapidly to be the 
passion of Marshall's life, was given fresh force by 
the humiliation and distress of the Dutch under 
French control. 

"The political opinions which have produc'd the 
rejection of the constitution," Marshall reasons in 
his report to Washington, "& which, as it wou'd 
seem, can only be entertain'd by intemperate & ill 
inform'd minds unaccustom'd to a union of the theory 
& practice of liberty, must be associated with a gen- 
eral system which if brought into action will pro- 
duce the same excesses here which have been so 
justly deplor'd in France. 

"The same materials exist tho* not in so great a 
degree. They have their clubs, they have a numer- 
ous poor & they have enormous wealth in the hands 
of a minority of the nation." 

Marshall interviewed Dutch citizens, in his casual, 
indolent, and charming way; and he thus relates to 
Washington the sum of one such conversation: — 

"On my remarking this to a very rich & intelli- 
gent merchant of Amsterdam & observing that if 
one class of men withdrew itself from public duties 



236 JOHN MARSHALL 

& offices it wou'd immediately be succeeded by an- 
other which wou'd acquire a degree of power & in- 
fluence that might be exercis'd to the destruction 
of those who had retir'd from society, he replied that 
the remark was just, but that they relied on France 
for a protection from those evils which she had her- 
self experienc'd. That France wou'd continue to re- 
quire great supplies from Holland & knew its situa- 
tion too well to permit it to become the prey of 
anarchy. 

"That Holland was an artificial country acquired 
by persevering industry & which cou'd only be pre- 
served by wealth & order. That confusion & anarchy 
wou'd banish a large portion of that wealth, wou'd 
dry up its sources & wou'd entirely disable them 
from giving France that pecuniary aid she so much 
needed. That under this impression very many who 
tho' friends to the revolution, saw with infinite mor- 
tification french troops garrison the towns of Hol- 
land, wou'd now see their departure with equal 
regret. 

"Thus, they willingly relinquish national inde- 
pendence for individual safety. What a lesson to 
those who wou'd admit foreign influence into the 
United States!" 

Marshall then narrates the events in France which 
followed the coup d'etat of September 4. While this 
account is drawn from rumors and newspapers and 
therefore contains a few errors, it is remarkable on 
the whole for its general accuracy. No condensation 
can do justice to Marshall's review of this period 
of French history in the making. It is of first im- 



ENVOY TO FRANCE 237 

portance, also, as disclosing his opinions of the 
Government he was so soon to encounter and his 
convictions that unrestrained liberty must result in 
despotism. 

"You have observed the storm which has been 
long gathering in Paris," continues Marshall. "The 
thunderbolt has at length been launch'd at the heads 
of the leading members of the legislature & has, it is 
greatly to be fear'd, involv'd in one common ruin 
with them, the constitution & liberties of their coun- 
try. . . . Complete & impartial details concerning it 
will not easily be obtained as the press is no longer 
free. The journalists who had ventur'd to censure the 
proceedings of a majority of the directory are seiz'd, 
& against about forty of them a sentence of trans- 
portation is pronounced. 

"The press is plac'd under the superintendence of 
a police appointed by & dependent on the executive. 
It is supposed that all private letters have been 
seiz'd for inspection. 

"From some Paris papers it appears, that on the 
first alarm, several members of the legislature at- 
tempted to assemble in their proper halls which 
they found clos'd & guarded by an arm'd force. 
Sixty or seventy assembled at another place & began 
to remonstrate against the violence offer' d to their 
body, but fear soon dispersed them. 

"To destroy the possibility of a rallying point the 
municipal administrations of Paris & the central 
administration of the seine were immediately sus- 
pended & forbidden by an arrete of the directoire, 
to assemble themselves together. 



238 JOHN MARSHALL 

"Many of the administrators of the departments 
through France elected by the people, had been 
previously remov'd & their places filled by persons 
chosen by the directory. . . . 

"The fragment of the legislature convoked by the 
directory at L'Odeon & L' ecole de sante, hasten'd to 
repeal the law for organizing the national guards, & 
authoriz'd the directory to introduce into Paris as 
many troops as shou'd be judg'd necessary. The 
same day the liberty of the press was abolish'd by a 
line, property taken away by another & personal 
security destroy' d by a sentence of transportation 
against men unheard & untried. 

"All this," sarcastically remarks Marshall, "is 
still the triumph of liberty & of the constitution." 

Although admitting his lack of official informa- 
tion, Marshall "briefly" observes that: "Since the 
election of the new third, there were found in both 
branches of the legislature a majority in favor of 
moderate measures & apparently, wishing sincerely 
for peace. They have manifested a disposition which 
threaten' d a condemnation of the conduct of the 
directory towards America, a scrutiny into the 
transactions of Italy, particularly those respecting 
Venice & Genoa, an enquiry into the disposition of 
public money & such a regular arrangement of the 
finances as wou'd prevent in future those dilapida- 
tions which are suspected to have grown out of their 
disorder. They [French conservatives] have sought 
too by their laws to ameliorate the situation of those 
whom terror had driven out of France, & of those 
priests who had committed no offense." 



ENVOY TO FRANCE 239 

Marshall thus details to Washington the excuse 
of the French radicals for their severe treatment of 
the conservatives: — 

''The cry of a conspiracy to reestablish royalism 
was immediately rais'd against them [conservatives]. 
An envoy was dispatched to the Army of Italy to 
sound its disposition. It was represented that the 
legislature was hostile to the armies, that it with- 
held their pay & subsistence, that by its opposition 
to the directory it encourag'd Austria & Britain to 
reject the terms of peace which were offer'd by 
France & which but for that opposition wou'd have 
been accepted, & finally that it had engag'd in a con- 
spiracy for the destruction of the constitution & the 
republic & for the restoration of royalty. 

"At a feast given to the armies of Italy to com- 
memorate their fellow soldiers who had fallen in that 
country the Generals address'd to them their com- 
plaints, plainly spoke of marching to Paris to sup- 
port the directory against the councils & received 
from them addresses manifesting the willingness of 
the soldiers to follow them. 

"The armies also addressed the directory & each 
other, & addresses were dispatched to different de- 
partments. The directory answer' d them by the 
strongest] criminations of the legislature. Similar 
proceedings were had in the army of the interior 
commanded by Gen 1 . Hoche. Detachments were 
mov'd within the limits prohibited by the constitu- 
tion, some of which declar'd they were marching to 
Paris 'to bring the legislature to reason.'" 

Here follows Marshall's story of what then hap- 



240 JOHN MARSHALL 

pened, according to the accounts which were given 
him at The Hague: — 

" Alarm 'd at these movements the council of five 
hundred call'd on the directory for an account of 
them. The movement of the troops within the con- 
stitutional circle was attributed to accident & the 
discontents of the army to the faults committed by 
the legislature who were plainly criminated as con- 
spirators against the army & the republic. 

"This message was taken up by Trongon in the 
council of antients & by Thibideau in the council of 
five hundred. I hope you have seen their speeches. 
They are able, & seem to me entirely exculpated the 
legislature. 

"In the mean time the directory employed itself 
in the removal of the administrators of many of the 
departments & cantons & replacing those whom the 
people had elected by others in whom it cou'd con- 
fide, and in the removal generally of such officers 
both civil & military as cou'd not be trusted to make 
room for others on whom it cou'd rely. 

"The legislature on its part, pass'd several laws 
to enforce the constitutional restrictions on the 
armies & endeavored to organize the national guards. 
On this latter subject especially Pichegru, great & 
virtuous I believe in the cabinet as in the field, was 
indefatigable. We understand that the day before 
the law for their organization wou'd have been car- 
ried into execution the decisive blow was strucko" 

Marshall now relates, argumentatively , the facts as 
he heard them in the Dutch Capital; and in doing so, 
reveals his personal sentiments and prejudices: — 



ENVOY TO FRANCE 241 

"To support the general charge of conspiracy in 
favor of royalty I know of no particular facts al- 
ledged against the arrested Members except Pichegru 
& two or three others. . . . Pichegru is made in the 
first moment of conversation to unbosom himself 
entirely to a perfect stranger who had only told him 
that he came from the Prince of Conde & cou'd not 
exhibit a single line of testimonial of any sort to 
prove that he had ever seen that Prince or that he 
was not a spy employ' d by some of the enemies of 
the General. 

"This story is repel'd by Pichegru's character 
which has never before been defil'd. Great as were 
the means he possess'd of personal aggrandizement 
he retir'd clean handed from the army without add- 
ing a shilling to his private fortune. It is repel'd by 
his resigning the supreme command, by his numer- 
ous victories subsequent to the alleged treason, by 
its own extreme absurdity & by the fear which his 
accusers show of bringing him to trial according to 
the constitution even before a tribunal they can in- 
fluence & overawe, or of even permitting him to be 
heard before the prostrate body which is still term'd 
the legislature & which in defiance of the constitu- 
tion has pronounc'd judgment on him. 

"Yet this improbable & unsupported tale seems 
to be receiv'd as an established truth by those who 
the day before [his] fall bow'd to him as an idol. I 
am mortified as a man to learn that even his old 
army which conquer' d under him, which ador'd him, 
which partook of his fame & had heretofore not 
join'd their brethren in accusing the legislature, now 



242 JOHN MARSHALL 

unite in bestowing on him the heaviest execrations 
& do not hesitate to pronounce him a traitor of the 
deepest die." 

Irrespective of the real merits of the controversy, 
Marshall tells Washington that he is convinced that 
constitutional liberty is dead or dying in France : — ■ 

"Whether this conspiracy be real or not," he says, 
"the wounds inflicted on the constitution by the 
three directors seem to me to be mortal. In opposi- 
tion to the express regulations of the constitution the 
armies have deliberated, the result of their delibera- 
tions addressed to the directory has been favorably 
received & the legislature since the revolution has 
superadded its thanks. 

"Troops have been marched within those limits 
which by the constitution they are forbidden to 
enter but on the request of the legislature. The di- 
rectory is forbidden to arrest a member of the legis- 
lature unless in the very commission of a criminal 
act & then he can only be tried by the high court, on 
which occasion forms calculated to protect his per- 
son from violence or the prejudice of the moment are 
carefully prescrib'd. 

"Yet it has seized, by a military force, about fifty 
leading members not taken in a criminal act & has 
not pursued a single step mark'd out by the consti- 
tution. The councils can inflict no penalty on their 
own members other than reprimand, arrest for 
eight & imprisonment for three days. Yet they have 
banished to such places as the directory shall chuse 
a large portion of their body without the poor for- 
mality of hearing a defense. 



ENVOY TO FRANCE 243 

"The legislature shall not exercise any judiciary 
power or pass any retrospective law. Yet it has 
pronounc'd this heavy judgment on others as well 
as its own members & has taken from individuals 
property which the law has vested in them." 

Marshall is already bitter against the Directory 
because of its violation of the French Constitution, 
and tells Washington : — 

"The members of the directory are personally 
secur'd by the same rules with those of the legisla- 
ture. Yet three directors have depriv'd two of their 
places, the legislature has then banished them with- 
out a hearing & has proceeded to fill up the alledg'd 
vacancies. Merlin late minister of justice & Fran- 
gois de Neufchatel have been elected. 

"The constitution forbids the house of any man 
to be entered in the night. The orders of the con- 
stituted authorities can only be executed in the day. 
Yet many of the members were seiz'd in their 
beds. 

"Indeed, sir, the constitution has been violated in 
so many instances that it wou'd require a pamphlet 
to detail them. The detail wou'd be unnecessary for 
the great principle seems to be introduc'd that the 
government is to be administered according to the 
will of the nation." 

Marshall now indulges in his characteristic elo- 
quence and peculiar method of argument: — 

"Necessity, the never to be worn out apology for 
violence, is alledg'd — but cou'd that necessity go 
further than to secure the persons of the conspira- 
tors? Did it extend to the banishment of the print- 



244 JOHN MARSHALL 

ers & to the slavery of the press? If such a necessity 
did exist it was created by the disposition of the peo- 
ple at large & it is a truth which requires no demon- 
stration that if a republican form of government can- 
not be administered by the general will, it cannot 
be administered against that will by an army." 

Nevertheless, hope for constitutional liberty in 
France lingers in his heart in spite of this melan- 
choly recital. 

"After all, the result may not be what is appre- 
hended. France possesses such enormous power, 
such internal energy, such a vast population that she 
may possibly spare another million & preserve or 
reacquire her liberty. Or, the form of the govern- 
ment being preserved, the independence of the legis- 
lature may be gradually recover'd. 

" With their form of government or resolutions we 
have certainly no right to intermeddle, but my re- 
grets at the present state of things are increased by 
an apprehension that the rights of our country will 
not be deem'd so sacred under the existing system as 
they wou'd have been had the legislature preserved 
its legitimate authority." l 

Washington's reply, which probably reached 
Marshall some time after the latter's historic letter 
to Talleyrand in January, 1798, 2 is informing. 
He "prays for a continuance" of such letters and 
hopes he will be able to congratulate Marshall "on 
the favorable conclusion of your embassy. ... To 
predict the contrary might be as unjust as it is im- 

1 Marshall to Washington, The Hague, Sept. 15, 1797; Amer, 
Hist. Rev., ii, no. 2, Jan., 1897; and MS., Lib. Cong. 

2 See infra, next chapter. 



ENVOY TO FRANCE 245 

politic, and therefore," says Washington, "mum — 
on that topic. Be the issue what it may," he is sure 
''that nothing which justice, sound reasoning, and 
fair representation would require will be wanting to 
render it just and honorable." If so, and the mission 
fails, "then the eyes of all who are not willfully 
blind .... will be fully opened." The Directory 
will have a rude awakening, if they expect the Re- 
publicans to support France against America in the 
"dernier ressort. . . . For the mass of our citizens 
require no more than to understand a question to 
decide it properly; and an adverse conclusion of the 
negotiation will effect this." Washington plainly 
indicates that he wishes Marshall to read his letter 
between the lines when he says: "I shall dwell very 
little on European politics . . . because this letter may 
pass through many hands." 1 

Gerry not arriving by September 18, Marshall and 
Pinckncy set out for Paris, "proceeding slowly in the 
hope of being overtaken" by their tardy associate. 
From Antwerp Marshall writes Charles Lee, then 
Attorney-General, correcting some unimportant 
statements in his letter to Washington, which, when 
written, were "considered as certainly true," but 
which "subsequent accounts contradict." 2 Down- 
heartedly he says: — 

1 Washington to Marshall, Dec. 4, 1797; Writings: Ford, xiii, 
432-34. 

2 To justify the violence of the 18th Fructidor, the Directory as- 
serted that the French elections, in which a majority of conservatives 
and anti-revolutionists were returned and General Pichegru chosen 
President of the French Legislature, were parts of a royal conspiracy 
to destroy liberty and again place a king upon the throne of France. 
In these elections the French liberals, who were not in the army, did not 



246 JOHN MARSHALL 

"Our insulted injured country has not before it 
the most flattering prospects. There is no circum- 
stance calculated to flatter us with the hope that our 
negotiations will terminate as they ought to do. 
. . . We understand that all is now quiet in France, 
the small show of resistance against which Napoleon 
march'd is said to have dispersed on hearing of his 
movement." 

He then describes the celebration in Antwerp of 
the birth of the new French regime : — 

"To-day being the anniversary of the foundation 
of the Republic, was celebrated with great pomp 
by the military at this place. Very few indeed of the 

vote; while all conservatives, who wished above all things for a stable 
and orderly government of law and for peace with other countries, 
flocked to the polls. 

Among the latter, of course, were the few Royalists who still re- 
mained in France. Such, at least, was the view Marshall took of this 
episode. To understand Marshall's subsequent career, too much weight 
cannot be given this fact and, indeed, all the startling events in France 
during the six historic months of Marshall's stay in Paris. 

But Marshall did not take into account the vital fact that the 
French soldiers had no chance to vote at this election. They were 
scattered far and wide — in Italy, Germany, and elsewhere. Yet 
these very men were the soul of the Revolutionary cause. And the 
private soldiers were more enraged by the result of the French elec- 
tions than their generals — even than General Augereau, who was 
tigerish in his wrath. 

They felt that, while they were fighting on the battlefield, they had 
been betrayed at the ballot box. To the soldiers of France the rev- 
olution of the 18th Fructidor was the overthrow of their enemies 
in their own country. The army felt that it had answered with loyal 
bayonets a conspiracy of treasonable ballots. It now seems prob- 
able that the soldiers and officers of the French armies were right in 
this view. 

Pinckney was absurdly accused of interfering in the elections in 
behalf of the "Royalist Conspiracy." (Vans Murray to J. Q. Adams, 
April 3, 1798; Letters: Ford, 391.) Such a thing, of course, was per- 
fectly impossible. 



ENVOY TO FRANCE 247 

inhabitants attended the celebration. Everything 
in Antwerp wears the appearance of consternation 
and affright. 

" Since the late revolution a proclamation has been 
published forbidding any priest to officiate who has 
not taken the oath prescribed by a late order. No 
priest at Antwerp has taken it & yesterday com- 
menced the suspension of their worship. 

"All the external marks of their religion too with 
which their streets abound are to be taken down. 
The distress of the people at the calamity is al- 
most as great as if the town was to be given up to 
pillage." * 

Five days after leaving Antwerp, Marshall and 
Pinckney arrived in the French Capital. The Paris 
of that time was still very much the Paris of Riche- 
lieu, except for some large buildings and other im- 
provements begun by Louis XIV. The French me- 
tropolis was in no sense a modern city and bore 
little resemblance to the Paris of the present day. 
Not until some years afterward did Napoleon as 
Emperor begin the changes which later, under Na- 
poleon III, transformed it into the most beautiful 
city in the world. Most of its ancient interest, as 
well as its mediaeval discomforts, were in existence 
when Marshall and Pinckney'reached their destina- 
tion. 

The Government was, in the American view, in- 
credibly corrupt, and the lack of integrity among the 
rulers was felt even among the people. "The venal- 

1 Marshall to Lee, Antwerp, Sept. 22, 1797; MS., New Yorfe 
Pub. Lib. 



248 JOHN MARSHALL 

ity is such,'* wrote Gouverneur Morris, in 1793, 
"that if there be no traitor it is because the enemy 
has not common sense." l And again: "The . . . 
administration is occupied in acquiring wealth." 2 
Honesty was unknown, and, indeed, abhorrent, to 
most of the governing officials; and the moral sense 
of the citizens themselves had been stupefied by 
the great sums of money which Bonaparte extracted 
from conquered cities and countries and sent to the 
treasury at Paris. Time and again the Republic was 
saved from bankruptcy by the spoils of conquest; 
and long before the American envoys set foot in 
Paris the popular as well as the official mind had 
come to expect the receipt of money from any source 
or by any means. 

The bribery of ministers of state and of members 
of the Directory was a matter of course; 3 and 
weaker countries paid cash for treaties with the 
arrogant Government and purchased peace with a 
price. During this very year Portugal was forced 
to advance a heavy bribe to Talleyrand and the 
Directory before the latter would consent to nego- 
tiate concerning a treaty; and, as a secret part of 
the compact, Portugal was required to make a 
heavy loan to France. It was, indeed, a part of this 
very Portuguese money with which the troops were 

1 Gouverneur Morris to Washington, Feb., 1793; Morris, ii, 37. 
While Morris was an aristocrat, thoroughly hostile to democracy 
and without sympathy with or understanding of the French Rev- 
olution, his statements of facts have proved to be generally accurate. 
(See Lyman: Diplomacy of the United States, i, 352, on corruption of 
the Directory.) 

2 Morris to Pinckney, Aug. 13, 1797; Morris, ii, 51. 
8 Loliee: Talleyrand and His Times, 170-71. 



ENVOY TO FRANCE 249 

brought to Paris for the September revolution of 
1797. 1 

Marshall and Pinckney at once notified the French 
Foreign Office of their presence, but delayed present- 
ing their letters of credence until Gerry should join 
them before proceeding to business. A week passed; 
and Marshall records in his diary that every day the 
waiting envoys were besieged by "Americans whose 
vessels had been captured & condemned. By ap- 
peals & other dilatory means the money had been 
kept out of the hands of the captors & they were now 
waiting on expenses in the hope that our [the en- 
voys'] negotiations might relieve them." 2 A de- 
vice, this, the real meaning of which was to be made 
plain when the hour should come to bring it to bear 
on the American envoys. 

Such was the official and public atmosphere in 
which Marshall and Pinckney found themselves on 
their mission to adjust, with honor, the differences 
between France and America: a network of unoffi- 
cial and secret agents was all about them; and at its 
center was the master spider, Talleyrand. The un- 
frocked priest had been made Foreign Minister under 
the Directory in the same month and almost the day 
that Marshall embarked at Philadelphia for Paris. 
It largely was through the efforts and influence of 
Madame de Stael 8 that this prince of intriguers was 

1 King to Secretary of State, Dispatch no. 54, Nov. 18, 1897; 
King, ii, 243. 

2 Marshall's Journal, official copy, Pickering Papers, Mass. Hist. 
Soc, 1. 

3 Loliee: Talleyrand and His Times, 147; and Blennerhassett: 
Talleyrand, ii, 256-57. 



250 JOHN MARSHALL 

able to place his feet upon this first solid step of his 
amazing career. 

Talleyrand's genius was then unknown to the 
world, and even the Directory at that time had 
no inkling of his uncanny craft. To be sure, his 
previous life had been varied and dramatic and 
every page of it stamped with ability; but in the 
tremendous and flaming events of that tragic period 
he had not attracted wide attention. Now, at last, 
Talleyrand had his opportunity. 

Among other incidents of his life had been his 
exile to America. For nearly two years and a half he 
had lived in the United States, traveling hither and 
yon through the forming Nation. Washington as 
President had refused to receive the expelled French- 
man, who never forgave the slight. In his journey 
from State to State he had formed a poor opinion of 
the American people. "If," he wrote, "I have to 
stay here another year I shall die." * 

The incongruities of what still was pioneer life, 
the illimitable forests, the confusion and strife of 
opinion, the absence of National spirit and general 
purpose, caused Talleyrand to look with contempt 
upon the wilderness Republic. But most of all, this 
future master spirit of European diplomacy was 
impressed with what seemed to him the sordid, 
money-grubbing character of the American people. 
Nowhere did he find a spark of that idealism which 
had achieved our independence; and he concluded 
that gold was the American god. 2 

1 Talleyrand toMme. de Stael, quoted in McCabe: Talleyrand, 137. 

2 Memoirs of Talleyrand: Broglie's ed., i, 179-82; also see McCabe's 



ENVOY TO FRANCE 251 

Fauchet's disclosures * had caused official Paris 
to measure the American character by the same 
yardstick that Talleyrand applied to us, when, on 
leaving our shores, he said: "The United State? 
merit no more consideration than Genoa or Geneve."' 

The French Foreign Minister was not fairly es 
tablished when the American affair came before him. 
Not only was money his own pressing need, but tc? 
pander to the avarice of his master Barras and the 
other corrupt members of the Directory was hia 
surest method of strengthening his, as yet, uncertain 
official position. Such were Talleyrand's mind, views « 
and station, when, three days after Gerry's belated 
arrival, the newly installed Minister received the 
American envoys informally at his house, "where his 
office was held." By a curious freak of fate, they 
found him closeted with the Portuguese Minister 
from whom the very conditions had been exacted 
which Talleyrand so soon was to attempt to extort 
from the Americans. 

It was a striking group — Talleyrand, tall and 
thin of body, with pallid, shrunken cheeks and slum- 
berous eyes, shambling forward with a limp, as, 

summary in his Talleyrand, 136-38. Talleyrand was greatly im- 
pressed by the statement of a New Jersey farmer, who wished to see 
Bingham rather than President Washington because he had heard 
that Bingham was "so wealthy. . . . Throughout America I met with 
a similar love of money," says Talleyrand. {Memoirs of Talleyrand: 
Broglie's ed., i, 180.) In this estimate of American character during 
that period, Talleyrand did not differ from other travelers, nor, in- 
deed, from the opinion of most Americans who expressed themselves 
upon this subject. (See vol. i, chaps, vn, and vni, of this work.) 

1 Talleyrand as quoted in Pickering to King, Nov. 7, 1798; Picker- 
ing: Pickering, ii, 429. 

2 Am. St. Prs., For. Rel., ii, 158. 



252 JOHN MARSHALL 

with halting speech, 1 he coldly greeted his diplomatic 
visitors; Gerry, small, erect, perfectly attired, the 
owl-like solemnity of his face made still heavier by 
his long nose and enormous wig; Pinckney, hand- 
some, well-dressed, clear-eyed, of open countenance; 2 
and Marshall, tall, lean, loose-jointed, carelessly 
appareled, with only his brilliant eyes to hint at 
the alert mind and dominant personality of the 
man. 

Talleyrand measured his adversaries instantly. 
Gerry he had known in America and he weighed 
with just balance the qualities of the Massachusetts 
envoy; Pinckney he also had observed and feared 
nothing from the blunt, outspoken, and transpar- 
ently honest but not in the least subtle or far-seeing 
South Carolinian; the ill-appearing Virginian, of 
whom he had never heard, Talleyrand counted as 
a cipher. It was here that this keen and cynical 
student of human nature blundered. 

Marshall and Talleyrand were almost of an age, 3 
the Frenchman being only a few months older than 
his Virginia antagonist. The powers of neither were 
known to the other, as, indeed, they were at that 
time unguessed generally by the mass of the people, 
even of their own countries. 

A month after Talleyrand became the head of 
French Foreign Affairs, Rufus King, then our Min- 

1 Memoirs of Talleyrand : Stewarton, ii, 10. 

9 Pinckney was the only one of the envoys who could speak French. 
He had received a finished education in England at Westminster 
and Oxford and afterward had studied in France at the Royal Mili- 
tary College at Caen. 

3 Marshall and Talleyrand were forty-two years of age, Pinckney 
fifty-one, and Gerry fifty-three. 




% 








■ <r„i/.:,.i :/.-/ 



TALLEYRAND 



ENVOY TO FRANCE 253 

ister at London, as soon as he had heard of the 
appointment of the American envoys, wrote Tal- 
leyrand a conciliatory letter congratulating the 
French diplomat upon his appointment. King and 
Talleyrand had often met both in England and 
America. 

"We have been accustomed," writes King, "to 
converse on every subject with the greatest free- 
dom"; then, assuming the frankness of friendship, 
King tries to pave the way for Marshall, Pinckney, 
and Gerry, without mentioning the latter, how- 
ever. "From the moment I heard that you had 
been named to the Department of Foreign Affairs," 
King assures Talleyrand, "I have felt a satisfactory 
Confidence that the Cause of the increasing Mis- 
understanding between us would cease, and that the 
overtures mediated by our Government would not 
fail to restore Harmony and Friendship between the 
two Countries." 1 

King might have saved his ink. Talleyrand did 
not answer the letter; it is doubtful whether he even 
read it. At any rate, King's somewhat amateurish 
effort to beguile the French Foreign Minister by 
empty words utterly failed of its purpose. 

The Americans received cold comfort from Tal- 
leyrand; he was busy, he said, on a report on Franco* 
American affairs asked for by the Directory; when 
he had presented it to his superiors he would, he said, 
let the Americans know "what steps were to fol- 
low." Talleyrand saw to it, however, that the en- 
voys received "cards of hospitality" which had been 

1 King to Talleyrand, London, Aug. 3, 1797; King, ii, 206-08. 



254 JOHN MARSHALL 

denied to Pinckney. These saved the Americans at 
least from offensive attentions from the police. 1 

Three days later, a Mr. Church, an American-born 
French citizen, accompanied by his son, called on 
Gerry, but found Marshall, who was alone. From 
Thomas Paine, Church had learned of plans of the 
Directory concerning neutrals which, he assured 
Marshall, "would be extremely advantageous to the 
United States." "Do not urge your mission now," 
suggested Church — the present was "a most un- 
favorable moment." Haste meant that "all would 
probably be lost." What were these measures of 
the Directory? asked Marshall. Church was not at 
liberty to disclose them, he said; but the envoys' 
"true policy was to wait for events." 

That night came a letter from the author of 
"Common Sense." "This letter," Marshall re- 
cords, "made very different impressions on us. I 
thought it an insult which ought to be received with 
that coldness which would forbid the repetition of 
it. Mr. Gerry was of a contrary opinion." Marshall 
insisted that the Directory knew of Paine's letter 
and would learn of the envoys' answer, and that 
Pinckney, Gerry, and himself must act only as they 
knew the American Government would approve. 
It was wrong, said he, and imprudent to lead the 
Directory to expect anything else from the en- 
voys; and Paine's " aspersions on our government" 

1 Am. St. Prs., For. Rel., ii, 158; Marshall's Journal, Official Copy; 
MS., Mass. Hist. Soc, 2. The envoys' dispatches to the Secretary of 
State were prepared by Marshall, largely, from his Journal. Citations 
will be from the dispatches except when not including matter set out. 
exclusively in Marshall's Journal. 



ENVOY TO FRANCE 255 

should be resented. 1 So began the break between 
Marshall and Gerry, which, considering the char- 
acters of the two men, was inevitable. 

Next, Talleyrand's confidential secretary con- 
fided to Major Mountflorence, of the American Con- 
sulate, that the Directory would require explana- 
tions of President Adams's speech to Congress, by 
which they were exasperated. The Directory would 
not receive the envoys, he said, until the negotia- 
tions were over; but that persons would be ap- 
pointed "to treat with" the Americans, and that 
these agents would report to Talleyrand, who would 
have "charge of the negotiations." 2 Mountflorence, 
of course, so advised the envoys. 

Thus the curtain rose upon the melodrama now 
to be enacted — an episode without a parallel in 
the history of American diplomacy. To understand 
what follows, we must remember that the envoys 
were governed by careful, lengthy, and detailed 
instructions to the effect that "no blame or censure 
be directly, or indirectly, imputed to the United 
States"; that in order not to "wound her [Francel 
feelings or to excite her resentment " the negotiations 
were to be on the principles of the British Treaty; 
"that no engagement be made inconsistent with . . . 
any prior treaty"; that "no restraint on our lawful 
commerce with any other nation be admitted"; that 
nothing be done "incompatible with the complete 
sovereignty and independence of the United States 
in matters of policy, commerce, and government"; 

1 Marshall's Journal, Oct. 11, 2-4. 

2 Am. St. Prs., For. Rel, ii, 8-11, and 158. Fulwar Skipwith was 
consul ; but Mountflorence was connected with the office. 



256 JOHN MARSHALL 

and "that no aid be stipulated in favor of France during 
the present war." l 

We are now to witness the acts in that strange 
play, known to American history as the X. Y. Z. 
Mission, as theatrical a spectacle as any ever pre- 
pared for the stage. Indeed, the episode differs from 
a performance behind the footlights chiefly in that 
in this curious arrangement the explanation comes 
after the acting is over. When the dispatches to 
the American Government, which Marshall now is 
to write, were transmitted to Congress, diplomatic 
prudence caused the names of leading characters 
to be indicated only by certain letters of the alpha- 
bet. Thus, this determining phase of our diplomatic 
history is known to the present day as "The X. Y. Z 
Affair." 

1 Am. St. Prs., For. Rel., ii, 157. Italics are mine. 



CHAPTER VII 

FACING TALLEYRAND 

Society is divided into two classes; the shearers and the shorn. We should 
always be with the former against the latter. (Talleyrand.) 

To lend money to a belligerent power is to relinquish our neutrality. (Mar- 
shall.) 

Diplomatically Marshall and his associates 
found themselves marooned. Many and long were 
their discussions of the situation. "We have had 
several conversations on the extraordinary silence 
of the Government concerning our reception," 
writes Marshall in his Journal. " The plunder of our 
commerce sustains no abatements, the condemna- 
tions of our vessels are press'd with ardor . . . our 
reception is postponed in a manner most unusual 
& contemptuous. 

"I urge repeatedly that we ought, in a respectful 
communication to the Minister [Talleyrand] . . . 
to pray for a suspension of all further proceedings 
against American vessels until the further order of 
the Directory. . . . 

"We have already permitted much time to pass 
away, we could not be charged with precipitation, 
& I am willing to wait two or three days longer but 
not more. . . . The existing state of things is to 
France the most beneficial & the most desirable, but 
to America it is ruinous. I therefore urge that in a 
few days we shall lay this interesting subject before 
the Minister." 1 

1 Marshall's Journal, Oct. 15, 4-5. 



258 JOHN MARSHALL 

Marshall tells us that Gerry again opposed ac- 
tion, holding that for the envoys to act would "irri- 
tate the [French] Government." The Directory 
"might take umbrage." * Besides, declared Gerry, 
France was in a quandary what to do and "any 
movement on our part" would relieve her and put 
the blame on the envoys. "But," records Marshall, 
"in the address I propose I would say nothing which 
could give umbrage, & if, as is to be feared, France is 
determined to be offended, she may quarrel with our 
answer to any proposition she may make or even 
with our silence." Pinckney agreed with Marshall; 
but they yielded to Gerry in order to "preserve 
unanimity." 2 

Tidings soon arrived of the crushing defeat of the 
Dutch fleet by the British; and on the heels of this 
came reports that the Directory were ready to nego- 
tiate with the Americans. 3 Next morning, and four 
days after the mysterious intimations to the Ameri- 

1 Paris made an impression on the envoys as different as their tem- 
peraments. Vans Murray records the effect on Gerry, who had 
written to his friends in Boston of "how handsomely they [the envoys] 
were received in Paris and how hopeful he is of settlement! ! !" 

"Good God — he has mistaken the lamps of Paris for an illumi- 
nation on his arrival," writes our alarmed Minister at The Hague, 
"and the salutations of fisherwomen for a procession of chaste matrons 
hailing the great Pacificator! . . . His foible is to mistake things of 
common worldly politeness for deference to his rank of which he 
rarely loses the idea. . . . Gerry is no more fit to enter the labyrinth of 
Paris as a town — alone — than an innocent is, much less formed to 
play a game with the political genius of that city . . . without some 
very steady friend at his elbow. ... Of all men in America he is . . . 
the least qualify 'd to play a part in Paris, either among the men or the 
women — he is too virtuous for the last — too little acquainted with 
the world and himself for the first." (Vans Murray to J. Q. Adams, 
April 13, 1738; Letters: Ford, 394.) 

2 Marshall's Journal, 5. 3 lb., Oct. 17, 6. 



FACING TALLEYRAND 259 

can envoys from Talleyrand through his confidential 
secretary, a Parisian business man called on Pinck- 
ney and told him that a Mr. Hottenguer, 1 "a na- 
tive of Switzerland who had been in America," 2 and 
"a gentleman of considerable credit and reputa- 
tion," would call on Pinckney. Pinckney had met 
Hottenguer on a former occasion, probably at The 
Hague. That evening this cosmopolitan agent of 
financiers and foreign offices paid the expected visit. 
After a while Hottenguer "whispered . . . that he 
had a message from Talleyrand." Into the next room 
went Pinckney and his caller. There Hottenguer 
told Pinckney that the Directory were "exceedingly 
irritated" at President Adams's speech and that 
"they should be softened." 

Indeed, the envoys would not be received, said 
Hottenguer, unless the mellowing process were ap- 
plied to the wounded and angry Directory. He was 
perfectly plain as to the method of soothing that 
sore and sensitive body — "money" for the pockets 
of its members and the Foreign Minister which 
would be "at the disposal of M. Talleyrand." 
Also a loan must be made to France. Becoming 
still more explicit, Hottenguer stated the exact 
amount of financial salve which must be applied 
in the first step of the healing treatment required 
from our envoys — a small bribe of one million 
two hundred thousand livres [about fifty thousand 
pounds sterling, or two hundred and fifty thousand 
dollars]. 

1 Probably the same Hottenguer who had helped Marshall's 
brother negotiate the Fairfax loan in Amsterdam. (Supra, chap, iv.) 
'' Marshall's Journal, Oct. 17, 6. 



260 JOHN MARSHALL 

"It was absolutely required," reports Marshall, 
"that we should . . . pay the debts due by contract 
from France to our citizens . . . pay for the spolia- 
tions committed on our commerce ... & make a 
considerable loan. . . . Besides this, added Mr. Hot- 
tenguer, there must be something for the pocket . . . 
for the private use of the Directoire & Minister 
under the form of satisfying claims which," says 
Marshall, "did not in fact exist." 1 

Pinckney reported to his colleagues. Again the 
envoys divided as to the course to pursue. "I was 
decidedly of opinion," runs Marshall's chronicle, 
"& so expressed myself, that such a proposition 
could not be made by a nation from whom any 
treaty, short of the absolute surrender of the in- 
dependence of the United States was to be expected, 
but that if there was a possibility of accommodation, 
to give any countenance whatever to such a prop- 
osition would be certainly to destroy that possibil- 
ity because it would induce France to demand from 
us terms to which it was impossible for us to ac- 
cede. I therefore," continues Marshall, "thought 
we ought, so soon as we could obtain the whole in- 
formation, to treat the terms as inadmissible and 
without taking any notice of them to make some 
remonstrance to the minister on our situation & on 
that of our countrymen." Pinckney agreed with 
Marshall; Gerry dissented and declared that "the 
whole negotiation . . . would be entirely broken off 
if such an answer was given as I [Marshall] had 
hinted & there would be a war between the two 

1 Am. St. Prs., For. Rel. y ii, 158; Marshall's Journal, 6-7. 



FACING TALLEYRAND 261 

nations." At last it was decided to get Hottenguer's 
proposition in writing. 1 

When Pinckney so informed Hottenguer, the 
latter announced that he had not dealt "immedi- 
ately with Talleyrand but through another gentle- 
man in whom Talleyrand had great confidence." 
Hottenguer had no objection, however, to writing 
out his "suggestions," which he did the next even- 
ing. 2 The following morning he advised the envoys 
that a Mr. Bellamy, "the confidential friend of 
M. Talleyrand," would call and explain matters in 
person. Decidedly, the fog was thickening. The en- 
voys debated among themselves as to what should 
be done. 

"I again urg'd the necessity of breaking off this 
indirect mode of procedure," testifies Marshall; but 
"Mr. Gerry reprobated precipitation, insisted on 
further explanations as we could not completely 
understand the scope & object of the propositions 
& conceiv'd that we ought not abruptly object to 
them." Marshall and Pinckney thought "that they 
[Talleyrand's demands] were beyond our powers & 
. . . amounted to a surrender of the independence 
of our country." 3 But Gerry had his way and the 
weaving of the spider's web went on. 

Two hours after candlelight that evening Hotten- 
guer and Bellamy entered Marshall's room where 
the three Americans were waiting for them; and 
Bellamy was introduced as "the confidential friend 
of M. Talleyrand," of whom Hottenguer had told 

1 Marshall's Journal, 7-8. • Am. St. Prs., For. Rel., ii, 158. 

3 Marshall's Journal, Oct. 20, 8-9. 



262 JOHN MARSHALL 

the envoys. Bellamy was, says Marshall, "a genevan 
now residing in Hamburg but in Paris on a visit." l 
He went straight to the point. Talleyrand, he con- 
fided to the envoys, was "a friend of America . . . 
the kindness and civilities he had personally re- 
ceived in America" had touched his heart; and he 
was burning to " repay these kindnesses." But what 
could this anxious friend of America do when the 
cruel Directory were so outraged at the American 
President's address to Congress that they would 
neither receive the envoys nor authorize "Talley- 
rand to have any communications with" them. 

Bellamy pointed out that under these circum- 
stances Talleyrand could not, of course, communi- 
cate directly with the envoys; but "had author- 
ized" him to deal with them "and to promise" that 
the French Foreign Minister would do his best to 
get the Directory to receive the Americans if the 
latter agreed to Talleyrand's terms. Nevertheless, 
Bellamy "stated explicitly and repeatedly that he 
was clothed with no authority" — he was not a 
diplomat, he said, but only the trusted friend of Tal- 
leyrand. He then pointed out the passages from 
Adams's address 2 which had so exasperated the 
French rulers and stated what the envoys must do 
to make headway. 

The American envoys, asserted Bellamy, must 
make "a formal disavowal in writing . . . that . . . 
the speech of the Citizen President," Barras, was 
"not offensive" to America; must offer "repara- 
tion" for President Adams's address; must affirm 

1 Marshall's Journal, Oct. 20, 8-9. 2 Supra, 226. 



FACING TALLEYRAND 263 

that the decree of the Directory, 1 which Adams had 
denounced, was not "contrary to the treaty of 
1778"; must state "in writing" the depredations on 
American trade "by the English and French priva- 
teers," and must make "a formal declaration" that 
Adams in his speech to Congress had not referred 
to the French Government or its agents: if all this 
were done "the French Republic is disposed to re- 
new their old-time relations with America" by a 
new treaty which should place France "with respect 
to the United States exactly on the same footing 
as they [the United States] should be with Eng- 
land." But, said Bellamy, there must be a secret 
article of this new treaty providing for a loan from 
America to France. 2 

Impossible as these terms were, the whole business 
must be preceded by a bribe. "I will not disguise 
from you," said Bellamy, "that this situation being 
met, the essential part of the treaty remains to be 
adjusted. . . . You must pay money — you must pay a 
great deal of money." Little was said about the two 
hundred and fifty thousand dollars bribe; "that," 
declare the envoys' dispatches to the American 
Secretary of State, "being completely understood 
on all sides to be required for the officers of the gov- 
ernment, and, therefore, needing no further expla- 
nation." When all these conditions were complied 
with, said Bellamy, "M. Talleyrand trusted that, 
by his influence with the Directory, he could prevail 

1 Directing the capture of enemy goods on American ships, thus 
nullifying the declaration in the Franco-American Treaty that "free 
bottoms make free goods." 

2 Am. St. Prs., For. ReL, ii, 159. 



264 JOHN MARSHALL 

on the government to receive" the Americans. For 
two hours the talk ran on. Before Talleyrand's 
agents left, the anxiously hospitable Gerry invited 
them to breakfast the next morning. 

Into consultation once more went the envoys. "I 
pressed strongly," writes Marshall in his Journal, 
" the necessity of declaring that the propositions were 
totally inadmissible" and that "it was derogatory 
from the honor and wounded the real interests of 
our country to permit ourselves, while unacknowl- 
edg'd, to carry on this clandestine negotiation with 
persons who produced no evidence of being au- 
thoriz'd by the Directoire or the Minister to treat 
with us. Mr. Gerry was quite of a contrary opinion 
& the old beaten ground about precipitation &c. was 
trodden once again. Gen'l Pinckney advocated de- 
cidedly the same opinions with myself & we deter- 
mined that the next morning should positively put 
an end to these conferences." 1 

"On our retiring," continues Marshall's narrative, 
"Mr. Gerry began to propose further delays & that 
we shou'd inform them [Talleyrand's go-betweens] 
that we wou'd take their propositions into consider- 
ation — I improperly interrupted him & declared 
that I wou'd not consent to any proposition of the 
sort, that the subject was already considered & that 
so far as my voice wou'd go I wou'd not permit it 
to be supposed longer that we cou'd deliberate on 
such propositions as were made to us." 

Pinckney agreed with Marshall; but, for har- 
mony's sake, Marshall finally said that he would 
1 Marshall's Journal, Oct. 20, 10. Am. St. Prs., For. Rel., ii, 159. 



FACING TALLEYRAND 265 

return to America to "consult our government" on 
this express condition only — "that France should 
previously and immediately suspend all depreda- 
tions upon American commerce." For once, Gerry 
assented and a letter was written accordingly. 1 

Hottenguer was prompt in his engagement to 
breakfast with Gerry the next morning; but Bellamy 
did not come till ten o'clock, explaining that he had 
been closeted with Talleyrand. Bellamy was much 
depressed; the Directory, he declared, would not re- 
ceive the envoys until the latter had disavowed Pres- 
ident Adams's speech, unless they "could find the 
means to change their [the Directory's] determina- 
tion in this particular." What were such "means?" 
asked the envoys. "I am not authorized to state 
them," said Bellamy. "You must search for them 
and propose them yourselves." 

Still, Bellamy, merely as an individual, was will- 
ing to suggest such "means." It was money, he ex- 
plained. The "Directory were jealous of their own 
honor and the honor of the nation"; they demanded 
the same treatment formerly accorded to the King; 
and their "honor must be maintained in the man- 
ner required" unless "the envoys substituted . . . 
something perhaps more valuable, and that was 
money." 2 

It was all so simple, according to Bellamy. All 
that the envoys had to do was to buy thirty-two 
million florins of Dutch inscriptions at twenty shil- 
lings to the pound. "It was certain," he assured 

1 Marshall's Journal, Oct. 21, 10-11. 
1 Am. St. Prs., For. Rel., ii, 159-60. 



266 JOHN MARSHALL 

the Americans, "that after a time the Dutch 
Government would repay . . . the money, so that 
America would ultimately lose nothing" and every- 
body would be happy. But even if the envoys made 
the loan in this way, the bribe of two hundred and 
fifty thousand dollars must be paid in addition. 
Thereupon the envoys handed him the letter which 
Marshall had prepared the night before, which 
stated that they had no power to make a loan, but 
could send one of their number to America for 
consultation and instruction. 

Bellamy was "disappointed" and at once modi- 
fied his language. Why did the envoys treat the 
money proposition as coming from the Directory? 
It was only his own personal suggestion. Then 
"what has led to our present conversation?" asked 
the envoys. Pinckney recalled Hottenguer's first 
visit and the latter confirmed Pinckney's account. 

Upon the envoys stating the differences between 
France and America, to settle which was the purpose 
of their mission, and gently resenting the demands 
made upon them, Bellamy became excited. The 
envoys' conduct was not to be borne, he exclaimed; 
let them beware of the resentment of France. They 
"could not help it," answered the envoys — the 
Directory must look after France; the envoys must 
look after the United States. 

Bellamy was "in despair." What a provincial 
view these Americans took of a diplomatic negotia- 
tion ! They must broaden their horizon. They must 
acquire worldly wisdom. They must remember "the 
respect which the Directory required"; they must 



FACING TALLEYRAND 267 

realize that that august body ''would exact as much 
as was paid to the ancient kings." The envoys would 
not be received without it; that was flat, Bellamy 
informed them; and "he seemed to shudder at the 
consequences." 

Marshall and Pinckney simply would not see the 
point. But Gerry was a man of the world who 
could understand European diplomacy. Marshall 
declared that the envoys were there to adjust inter- 
national differences. If, however, France "would 
make war," then, said they: "We regret the un- 
avoidable necessity of defending ourselves." l 

For a little while Talleyrand's leeches dropped 
away from the perplexed Americans. Marshall re- 
ported to Washington French conditions as he had 
observed them up to that time. He confirms to the 
former President the American report that French 
agriculture had been improved "in the course of the 
present war": — 

" In that part of the country through which I have 
passed the evidences of plenty abound. The whole 
earth appears to be in cultivation & the harvests of 
the present year appear to be as productive as the 
fields which yield them are extensive. 

"I am informed that every part of the country 
exhibits the same aspect. If this be the fact, there 
will probably remain, notwithstanding the demands 
of the armies, a surplus of provisions." 

Marshall briefly but clearly analyzes the economic 
and commercial outcome of the war: — 

"Manufactures have declined in the same ratio 

1 Am. St. Prs., For. Rel., ii, 159-60. 



268 JOHN MARSHALL 

that the cultivation of the soil has increas'd. War 
has been made upon the great manufacturing towns 
& they are in a considerable degree destroy'd. With 
manufactures France does not supply herself fully 
from her internal resources. 

"Those of Britain flow in upon her notwithstand- 
ing the most severe prohibitory laws. The port of 
Rotterdam is purposely left open by the English & 
their goods are imported by the Dutch under Prus- 
sian and other neutral colors. They are smuggled in 
great quantities into France. 

"Peace, then, will find this [French] nation en- 
tirely competent to the full supply of her colonies 
with provisions and needing manufactures to be im- 
ported for her own consumption. . . . France can 
take from America tobacco & raw cotton she can 
supply us with wines, brandies & silks." 

Marshall then makes a searching commentary on 
French politics. 

"The existing political state of France is con- 
nected with certain internal & powerfully operating 
causes by which it has been & will continue to be 
greatly influenc'd. Not the least of these is the ten- 
ure by which property is held. 

"In the course of the revolution it is believed that 
more than half the land of France has become 
national. 1 Of this a very considerable proportion 
has been sold at a low rate. 

"It is true that much of it belonged to those who 

have fallen under the Guillotine or who have been 

termed emigrants. Among the emigrants are many 

1 By "national" lands, Marshall refers to the confiscated estates. 



FACING TALLEYRAND 269 

whose attachment to their country has never been 
shaken; & what is remarkable, among them are 
many who were never out of France. The law upon 
this subject is worthy of attention. 

"Any two persons, no matter what their reputa- 
tion, may, to some authority, I believe the munici- 
pality of the district, write & subscribe against any 
person whatever a charge, that such person is an 
emigrant, on receipt of which the person so charg'd 
is without further investigation inscribed on the list 
of emigrants. 

"If the person so inscribed be afterwards appre- 
hended while his name remains on the list, the trial, 
as I understand, is, not of the fact of emigration, but 
of the identity of the persons, & if this identity be 
established, he is instantly fusiller'd[ shot]. The law 
is either rightly executed or permitted to be relax'd, 
as the occasion or the temper of the times may 
direct. 

"During intervals of humanity some disposition 
has been manifested to permit the return of those 
who have never offended, who have been banished 
by a terror which the government itself has repro- 
bated, & to permit in case of arrestation, an investi- 
gation of the fact of emigration as well as of the 
identity of the person accus'd. 

"There is too a great deal of property which has 
been sold as national but which in truth was never 
so, & which may be reclaimed by the original pro- 
prietors. 

"In this state the acquirers of national property 
are of course extremely suspicious. They form a vast 



270 JOHN MARSHALL 

proportion of the population of France. They are 
not only important in consequence of their numbers, 
but in consequence of their vigor, their activity & 
that unity of interest which produces a unity of 
effort among them. 

"The armies too have been promised a milliard. 
This promise rests upon the national property for its 
performance. The effect of these circumstances can- 
not escape your observation. Classes of citizens are 
to be disfranchised against the next election." 

Marshall and Pinckney, at this early stage of 
Talleyrand's financial-diplomatic intrigue, were so 
disgusted that they were on the point of "return- 
ing to America immediately." The continuance of 
French depredations on the high seas caused Mar- 
shall to write to Washington as follows: — 

"The captures of our vessels seem to be only 
limited by the ability to capture. That ability is 
increasing, as the government has let out to hardy 
adventurers the national frigates. Among those who 
plunder us, who are most active in this infamous 
business, & most loud in vociferating criminations 
equally absurd and untrue, are some unprincipled 
apostates who were born in America. 

"These sea rovers by a variety of means seem to 
have acquired great influence in the government. 

"This influence will be exerted to prevent an ac- 
commodation between the United States & France 
and to prevent any regulations which may intercept 
the passage of the spoils they have made on our com- 
merce, to their pockets. The government I believe 
is too well disposed to promote their views. At pres- 



FACING TALLEYRAND 271 

ent it seems to me to be radically hostile to our 
country. 

"I cou'd wish to form a contrary opinion, but to 
do so I must shut my eyes on every object which 
presents itself to them & fabricate in my own mind 
non-existing things, to be substituted for realities, 
& to form the basis of my creed. 

"Might I be permitted to hazard an opinion it 
wou'd be the Atlantic only can save us, & that no 
consideration will be sufficiently powerful to check 
the extremities to which the temper of this govern- 
ment will carry it, but an apprehension that we may 
be thrown into the arms of Britain." 

Although the Treaty of Campo Formio had been 
signed on the 17th of October, Paris had not yet 
heard of it. This treaty marked Bonaparte as 
the most constructive diplomat, as well as the 
foremost captain, of the age, for such he had 
already proved himself to be. A week later, when 
Marshall wrote the above letter to Washington 
(October 24, 1797), he reported that "The nego- 
tiations with the Emperor of Austria are said not 
to have been absolutely broken off. Yesterday it 
was said that peace with him was certain. Several 
couriers have arrived lately from Buonaparte & the 
national debt rose yesterday from seven to ten 
livres in the hundred. Whether this is founded on a 
real expectation of peace with Austria or is the mere 
work of stock jobbers is not for me to decide." 

But three days afterward (October 27) the news 
reached Paris; and Marshall adds this postscript: 
"The definitive peace is made with the Emperor. 



272 JOHN MARSHALL 

You will have seen the conditions. Venice has ex- 
perienced the fate of Poland. England is threatened 
with an invasion." * 

The thunders of cannon announcing Bonaparte's 
success were still rolling through Paris when Tal- 
leyrand's plotters again descended upon the Ameri- 
can envoys. Bellamy came and, Pinckney and Gerry 
being at the opera, saw Marshall alone. The tri- 
umph of Bonaparte was his theme. The victorious 
general was now ready to invade England, an- 
nounced Bellamy; but "concerning America not a 
syllable was said." 2 

Already Talleyrand, sensitive as any hawk to 
coming changes in the political weather, had begun 
to insinuate himself into the confidence of the future 
conqueror of Europe, whose diplomatic right arm 
he so soon was to become. The next morning the 
thrifty Hottenguer again visits the envoys. Bona- 
parte's success in the negotiations of Campo Formio, 
which sealed the victories of the French arms, has 
alarmed Hottenguer, he declares, for the success of 
the American mission. 

Why, he asks, have the Americans made no prop- 
osition to the Directory? That haughty body "were 
becoming impatient and would take a decided 
course in regard to America" if the envoys "could 
not soften them," exclaims Talleyrand's solicitous 
messenger. Surely the envoys can see that Bona- 
parte's treaty with Austria has changed everything, 

1 Marshall to Washington, Paris, Oct. 24 (postscript, 27th), 1797; 
Amer. Hist. Rev., Jan., 1897, ii, 301-03; also, Washington MSS., 
Lib. Cong.; or Sparks MSS., Mass. Hist. Soc. 

2 Marshall's Journal, Oct. 26, 12. 



FACING TALLEYRAND 273 

and that therefore the envoys themselves must 
change accordingly. 

Exhibiting great emotion, Hottenguer asserts 
that the Directory have determined "that all na- 
tions should aid them [the French], or be considered 
and treated as enemies." Think, he cries, of the 
"power and violence of France." Think of the pres- 
ent danger the envoys are in. Think of the wisdom of 
"softening the Directory." But he hints that "the 
Directory might be made more friendly." Gain 
time! Gain time! Give the bribe, and gain time! 
the wily agent advises the Americans. Otherwise, 
France may declare war against America. 

That would be most unfortunate, answer the en- 
voys, but assert that the present American "situa- 
tion was more ruinous than a declared war could 
be"; for now American "commerce was floundering 
unprotected." In case of war "America would pro- 
tect herself." 

"You do not speak to the point," Hottenguer 
passionately cries out; "it is money; it is expected 
that you will offer money." 

"We have given an answer to that demand," the 
envoys reply. 

"No," exclaims Hottenguer, "you have not! 
What is your answer?" 

"It is no," shouts Pinckney ; "no; not a sixpence!" 

The persistent Hottenguer does not desist. He 
tells the envoys that they do not know the kind of 
men they are dealing with. The Directory, he in- 
sists, disregard the justice of American claims; care 
nothing even for the French colonies; "consider 



274 JOHN MARSHALL 

themselves as perfectly invulnerable" from the 
United States. Money is the only thing that will 
interest such terrible men. The Americans, parrying, 
ask whether, even if they give money, Talleyrand 
will furnish proofs that it will produce results. Hot- 
tenguer evades the question. A long discussion ensues. 

Pay the bribe, again and again urges the irritated 
but tenacious go-between. Does not your Govern- 
ment "know that nothing is to be obtained here 
without money?" 

"Our Government had not even suspected such a 
state of things," declare the amazed Americans. 

"Well," answers Hottenguer, "there is not an 
American in Paris who could not have given that 
information. . . . Hamburgh and other states of 
Europe were obliged to buy peace . . . nothing could 
resist" the power of France; let the envoys think of 
"the danger of a breach with her." 1 

Thus far Pinckney mostly had spoken for the 
envoys. Marshall now took up the American case. 
Few utterances ever made by him more clearly re- 
veal the mettle of the man; and none better show his 
conception of the American Nation's rights, dignity, 
and station among the Governments of the world. 

"I told him [Hottenguer]," writes Marshall, "that 
... no nation estimated her [France's] power more 
highly than America or wished more to be on ami- 
cable terms with her, but that one object was still 
dearer to us than the friendship of France which was 
our national independence. That America had taken 
a neutral station. She had a right to take it. No 

1 Am. St. Prs., For. Rel., ii, 161-62. 




CHARLES COTES WORT 1 1 1TXCKXEY 



FACING TALLEYRAND 275 

nation had a right to force us out of it. That to lend 
. . . money to a belligerent power abounding in every 
thing requisite for war but money was to relinquish 
our neutrality and take part in the war. To lend this 
money under the lash & coercion of France was to 
relinquish the government of ourselves & to submit 
to a foreign government imposed on us by force," 
Marshall declared. "That we would make at least 
one manly struggle before we thus surrendered our 
national independence. 

"Our case was different from that of the minor 
nations of Europe," he explained. "They were un- 
able to maintain their independence & did not expect 
to do so. America was a great, & so far as concerned 
her self-defense, a powerful nation. She was able to 
maintain her independence & must deserve to lose it 
if she permitted it to be wrested from her. France & 
Britain have been at war for near fifty years of the 
last hundred & might probably be at war for fifty 
years of the century to come." 

Marshall asserted that "America has no motives 
which could induce her to involve herself in those 
wars and that if she now preserved her neutrality & 
her independence it was most probable that she 
would not in future be afraid as she had been for four 
years past — but if she now surrendered her rights of 
self government to France or permitted them to be 
taken from her she could not expect to recover them 
or to remain neutral in any future war." l 

1 Marshall's Journal, Oct. 27, 16-17. This statement of the Ameri- 
can case by Marshall is given in the dispatches, which Marshall pre- 
pared as coming from the envoys generally. (See Am. St. Prs., For. 
Rel, ii, 161-62.) 



276 JOHN MARSHALL 

For two hours Talleyrand's emissary pleads, 
threatens, bullies, argues, expostulates. Finally, he 
departs to consult with his fellow conspirator, or to 
see Talleyrand, the master of both. Thus ran the 
opening dialogue between the French bribe procurers 
and the American envoys. Day after day, week after 
week, the plot ran on like a play upon the stage. " A 
Mr. Hauteval whose fortune lay in the island of St. 
Domingo" called on Gerry and revealed how pained 
Talleyrand was that the envoys had not visited him. 
Again came Hauteval, whom Marshall judged to be 
the only one of the agents "solicitous of preserving 
peace." 

Thus far the envoys had met with the same re- 
quest, that they "call upon Talleyrand at private 
hours." Marshall and Pinckney said that, "having 
been treated in a manner extremely disrespectful " to 
their country, they could not visit the Minister of 
Foreign Affairs "in the existing state of things . . . 
unless he should expressly signify his wish " to see 
them " & would appoint a time & place." But, says 
Marshall, "Mr. Gerry having known Mr. Talleyrand 
in Boston considered it a piece of personal respect 
to wait on him & said that he would do so." 1 

Hottenguer again calls to explain how anxious 
Talleyrand was to serve the envoys. Make "one 
more effort," he urges, "to enable him to do so." 
Bonaparte's daring plan for the invasion of England 
was under way and Hottenguer makes the most of 
this. "The power and haughtiness of France," the 
inevitable destruction of England, the terrible con- 

1 Marshall's Journal, Oct. 23, 11-12. 



FACING TALLEYRAND 277 

sequences to America, are revealed to the Ameri- 
cans. "Pay by way of fees" the two hundred and 
fifty thousand dollar bribe, and the Directory would 
allow the envoys to stay in Paris; Talleyrand would 
then even consent to receive them while one of them 
went to America for instructions. 1 

Why hesitate? It was the usual thing; the Portu- 
guese Minister had been dealt with in similar fash- 
ion, argues Hottenguer. The envoys counter by ask- 
ing whether American vessels will meanwhile be 
restored to their owners. They will not, was the 
answer. Will the Directory stop further outrages on 
American commerce, ask the envoys? Of course 
not, exclaims Hottenguer. We do "not so much 
regard a little money as [you] said," declare the 
envoys, "although we should hazard ourselves by 
giving it but we see only evidences of the most 
extreme hostility to us." Thereupon they go into a 
long and useless explanation of the American case. 

Gerry's visit to his "old friend" Talleyrand was 
fruitless; the Foreign Minister would not receive 
him. 2 Gerry persisted, nevertheless, and finally 
found the French diplomat at home. Talleyrand 
demanded the loan, and held a new decree of the 
Directory before Gerry, but proposed to withhold it 
for a week so that the Americans could think it over. 
Gerry hastened to his colleagues with the news. 
Marshall and Pinckney told Hauteval to inform Tal- 
leyrand "that unless there is a hope that the Di- 
rectory itself might be prevailed upon by reason to 

1 Am. St. Prs., For. Rel., ii, 163; Marshall's Journal, Oct. 29, 21-22. 
1 Marshall's Journal, Oct. 23, 12. 



278 JOHN MARSHALL 

alter its arrete, we do not wish to suspend it for an 
instant." 1 

The next evening, when Marshall and Pinckney 
were away from their quarters, Bellamy and Hot- 
tenguer called on Gerry, who again invited them 
to breakfast. This time Bellamy disclosed the fact 
that Talleyrand was now intimately connected with 
Bonaparte and the army in Italy. Let Gerry ponder 
over that ! "The fate of Venice was one which might 
befall the United States," exclaimed Talleyrand's 
mouthpiece; and let Gerry not permit Marshall and 
Pinckney to deceive themselves by expecting help 
from England — France could and would attend 
to England, invade her, break her, force her to 
peace. Where then would America be? Thus for an 
hour Bellamy and Hottenguer worked on Gerry. 2 

Far as Talleyrand's agents had gone in trying to 
force the envoys to offer a bribe of a quarter of a mil- 
lion dollars, to the Foreign Minister and Directory, 
they now went still further. The door of the chamber 
of horrors was now opened wide to the stubborn 
Americans. Personal violence was intimated; war 
was threatened. But Marshall and Pinckney refused 
to be frightened. 

The Directory, Talleyrand, and their emissaries, 
however, had not employed their strongest resource. 
"Perhaps you believe," said Bellamy to the envoys, 
"that in returning and exposing to your countrymen 
the unreasonableness of the demands of this govern- 
ment, you will unite them in their resistance to those 

1 Marshall's Journal, Oct. 28, 18-19. 
8 Am. St. Prs., For. ReL, ii, 163. 



FACING TALLEYRAND 279 

demands. You are mistaken; you ought to know 
that the diplomatic skill of France and the means she 
possesses in your country are sufficient to enable 
her, with the French party in America, 1 to throw 
the blame which will attend the rupture of the 
negotiations on the federalists, as you term your- 
selves, but on the British party as France terms 
you. And you may assure yourselves that this will 
be done." 2 

Thus it was out at last. This was the hidden card 
that Talleyrand had been keeping back. And it was 
a trump. Talleyrand managed to have it played 
again by a fairer hand before the game was over. 
Yes, surely; here was something to give the obstinate 
Marshall pause. For the envoys knew it to be true. 
There was a French party in America, and there 
could be little doubt that it was constantly growing 
stronger. 3 Genet's reception had made that plain. 
The outbursts throughout America of enthusiasm 
for France had shown it. The popular passion ex- 
hibited, when the Jay Treaty was made public, had 
proved it. Adams's narrow escape from defeat had 
demonstrated the strength of French sympathy in 
America. 

1 "Infinite pains have been taken there [in France] to spread uni- 
versally the idea that there are, in America, only two parties, the one 
entirely devoted to France and the other to England." (J. Q. Adams 
to his father, The Hague, July 2, 1797; Writings, J. Q. A.: Ford, 
ii, 181.) 

2 Marshall's Journal, Oct. 30, 25-26; Am. St. Prs., For. Rel, 164. 

3 "The French were extremely desirous of seeing Mr. Jefferson 
President; . . . they exerted themselves to the utmost in favor of his 
election [in 1796]; . . . they made a great point of his success." (Har- 
per to his Constituents, Jan. 5, 1797; Bayard Papers: Donnan, 25; 
and see supra, chaps, i, n, in, and iv, of this volume.) 



280 JOHN MARSHALL 

A far more dangerous circumstance, as well known 
to Talleyrand as it was to the envoys, made the 
matter still more serious — the democratic societies, 
which, as we have seen, had been organized in great 
numbers throughout the United States had pushed 
the French propaganda with zeal, system, and abil- 
ity; and were, to America, what the Jacobin Clubs 
had been to France before their bloody excesses. 
They had already incited armed resistance to the 
Government of the United States. 1 Thorough infor- 
mation of the state of things in the young country 
across the ocean had emboldened Barras, upon tak- 
ing leave of Monroe, to make a direct appeal to the 
American people in disregard of their own Govern- 
ment, and, indeed, almost openly against it. The 
threat, by Talleyrand's agents, of the force which 
France could exert in America, was thoroughly 
understood by the envoys. For, as we have seen, 
there was a French party in America — "a party," 
as Washington declared, "determined to advocate 
French measures under all circumstances." 2 It was 
common knowledge among all the representatives 
of the American Government in Europe that the 
French Directory depended upon the Republican 
Party in this country. "They reckon . . . upon 
many friends and partisans among us," wrote the 
American Minister in London to the American 
Minister at The Hague. 3 

The Directory even had its particular agents in 
the United States to inflame the American people 

1 See supra, chap, in, 86 et seq. 

2 Washington to King, June 25, 1797; King, ii, 194. 

3 King to Murray, March 81, 1798; ib., 294. 



FACING TALLEYRAND 281 

against their own Government if it did not yield to 
French demands. Weeks before the President, in 
1797, had called Congress in special session on 
French affairs, "the active and incessant manoeu- 
vres of French agents in" America made William 
Smith think that any favorable action of France 
"will drive the great mass of knaves & fools back 
into her [France's] arms," notwithstanding her 
piracies upon our ships. 1 

On November 1 the envoys again decided to "hold 
no more indirect intercourse with" Talleyrand or the 
Directory. Marshall and Pinckney told Hottenguer 
that they thought it "degrading our country to 
carry on further such an indirect intercourse"; and 
that they "would receive no propositions" except 
from persons having "acknowledged authority." 
After much parrying, Hottenguer again unparked 
the batteries of the French party in America. 

He told Marshall and Pinckney that "intelligence 
had been received from the United States, that if 
Colonel Burr and Mr. Madison had constituted the 
Mission, the difference between the two nations 
would have been accommodated before this time." 
Talleyrand was even preparing to send a memorial 
to America, threatened Hottenguer, complaining 
that the envoys were "unfriendly to an accommo- 
dation with France." 

The insulted envoys hotly answered that Talley- 
rand's "correspondents in America took a good deal 
on themselves when they undertook to say how the 
Directory would have received Colonel Burr and 
1 Smith to King, Philadelphia, April 3, 1797; King, ii, 165. 



282 JOHN MARSHALL 

Mr. Madison"; and they defied Talleyrand to send 
a memorial to the United States. 1 

Disgusted with these indirect and furtive methods, 
Marshall insisted on writing Talleyrand on the sub- 
ject that the envoys had been sent to France to 
settle. "I had been for some time extremely solici- 
tous" that such a letter should be sent, says Mar- 
shall. " It appears to me that for three envoys extra- 
ordinary to be kept in Paris thirty days without 
being received can only be designed to degrade & 
humiliate their country & to postpone a consider- 
ation of its just & reasonable complaints till future 
events in which it ought not to be implicated shall 
have determined France in her conduct towards it. 
Mr. Gerry had been of a contrary opinion & we had 
yielded to him but this evening he consented that 
the letter should be prepared." 2 

Nevertheless Gerry again objected. 3 At last the 
Paris newspapers took a hand. "It was now in the 
power of the Administration [Directory]," says 
Marshall, "to circulate by means of an enslaved 
press precisely those opinions which are agreeable 
to itself & no printer dares to publish an examination 
of them." 

"With this tremendous engine at its will, it [the 
Directory] almost absolutely controls public opinion 
on every subject which does not immediately affect 
the interior of the nation. With respect to its de- 
signs against America it experiences not so much 
difficulty as . . . would have been experienced had not 

1 Am. St. Prs., For. Rel., ii, 163-64. 

2 Marshall's Journal, Nov. 4, 31. a lb., 31, 



FACING TALLEYRAND 283 

our own countrymen labored to persuade them that 
our Government was under a British influence." * 
On November 3, Marshall writes Charles Lee: 
"When I clos'd my last letter I did not expect to 
address you again from this place. I calculated on 
being by this time on my return to the United States. 
. . . My own opinion is that France wishes to retain 
America in her present situation until her negotia- 
tion with Britain, which it is believed is about to 
recommence, shall have been terminated, and a 
present absolute rupture with America might en- 
courage England to continue the war and peace with 
England . . . will put us more in her [France's] 
power. . . . Our situation is more intricate and diffi- 
cult than you can believe. . . . The demand for 
money has been again repeated. The last address 
to us . . . concluded . . . that the French party in 
America would throw all the blame of a rupture on 
the federalists. . . . We were warned of the fate of 
Venice. All these conversations are preparing for a 
public letter but the delay and the necessity of writ- 
ing only in cypher prevents our sending it by this 
occasion. ... I wish you could . . . address the 
Minister concerning our reception. We despair of 
doing anything. . . . Mr. Putnam an American citi- 
zen has been arrested and sent to jail under the pre- 
text of his cheating frenchmen. . . . This ... is a 
mere pretext. It is considered as ominous toward 
Americans generally. He like most of them is a 
creditor of the [French] government." 2 

1 Marshall's Journal, Nov. 8, 33. 

2 Marshall to Lee, Nov. 3, 1797; MS., Lib. Cong. Lee was Attor. 
ney-General. Marshall's letter was in cipher. 



284 JOHN MARSHALL 

Finally the envoys sent Talleyrand the formal 
request, written by Marshall, 1 that the Directory 
receive them. Talleyrand ignored it. Ten more days 
went by. When might they expect an answer? in- 
quired the envoys. Talleyrand parried and delayed. 
"We are not yet received," wrote the envoys to 
Secretary of State Pickering, "and the condemna- 
tion of our vessels ... is unremittingly continued. 
Frequent and urgent attempts have been made 
to inveigle us again into negotiations with persons 
not officially authorized, of which the obtaining of 
money is the basis; but we have persisted in declin- 
ing to have any further communication relative 
to diplomatic business with persons of that de- 
scription/' 2 

Anxious as Marshall was about the business of his 
mission, which now rapidly was becoming an intel- 
lectual duel between Talleyrand and himself, he was 
far more concerned as to the health of his wife, from 
whom he had heard nothing since leaving America. 
Marshall writes her a letter full of apprehension, but 
lightens it with a vague account of the amusements, 
distractions, and dissipations of the French Capital. 

"X have not, since my departure from the United 
States," Marshall tells his wife, "received a single 
letter from you or from any one of my friends in 
America. Judge what anxiety I must feel concerning 
you. I do not permit myself for a moment to suspect 
that you are in any degree to blame for this. I am 
sure you have written often to me but unhappily for 

1 Marshall to Lee, Nov. 7, 8, 9, 10, and 11; MS., Lib. Cong. 
* Am. St. Prs., For. ReL, ii, 166. 



FACING TALLEYRAND 285 

me your letters have not found me. I fear they will 
not. They have been thrown over board or inter- 
cepted. Such is the fate of the greater number of the 
letters addressed by Americans to their friends in 
France, such I fear will be the fate of all that may 
be address'd to me. 

"In my last letter I informed you that I counted 
on being at home in March. I then expected to 
have been able to leave this country by christmas 
at furthest & such is my impatience to see you & 
my dear children that I had determined to risk a 
winter passage." He asks his wife to request Mr. 
Wickham to see that one of Marshall's law cases 
"may ly till my return. I think nothing will prevent 
my being at the chancery term in May. 

"Oh God," cries Marshall, "how much time & 
how much happiness have I thrown away! Paris 
presents one incessant round of amusement & dissi- 
pation but very little I believe even for its inhabit- 
ants of that society which interests the heart. Every 
day you may see something new magnificent & beau- 
tiful, every night you may see a spectacle which 
astonishes & enchants the imagination. The most 
lively fancy aided by the strongest description can- 
not equal the reality of the opera. All that you can 
conceive & a great deal more than you can conceive 
in the line of amusement is to be found in this gay 
metropolis but I suspect it would not be easy to find 
a friend. 

"I would not live in Paris," Marshall tells his 
"dearest Polly" "[if I could] ... be among the 
wealthiest of its citizens. I have changed my lodg- 



286 JOHN MARSHALL 

ing much for the better. I liv'd till within a few 
days in a house where I kept my own apartments 
perfectly in the style of a miserable old bachelor 
without any mixture of female society. I now have 
rooms in the house of a very accomplished a very 
sensible & I believe a very amiable Lady whose tem- 
per, very contrary to the general character of her 
country women, is domestic & who generally sits 
with us two or three hours in the afternoon. 

"This renders my situation less unpleasant than 
it has been but nothing can make it eligible. Let me 
see you once more & I . . . can venture to assert that 
no consideration would induce me ever again to con- 
sent to place the Atlantic between us. Adieu my 
dearest Polly. Preserve your health & be happy as 
possible till the return of him who is ever yours." * 

The American Minister in London was following 
anxiously the fortunes of our envoys in Paris, and 
gave them frequent information and sound advice. 
Upon learning of their experiences, King writes 
that "I will not allow myself yet to despair of 
your success, though my apprehensions are greater 
than my hopes." King enclosed his Dispatch num- 
ber 52 to the American Secretary of State, which 
tells of the Portuguese Treaty and the decline of 
Spain's power in Paris. 2 

In reply, Pinckney writes King, on December 14, 
that the Directory "are undoubtedly hostile to our 
Government, and are determined, if possible, to 

1 Marshall to his wife, Paris, Nov. 27, 1797; MS. 

2 King to Pinckney, Marshall, and Gerry, Nov. 15, 1797; enclosing 
Dispatch no. 52 to Pinckney; King, ii, 240-41. See ib., 245; and 
Dec. 9, 1797; ib., 247. 



FACING TALLEYRAND 287 

effectuate a change in our administration, and to 
oblige our present President [Adams] to resign," and 
further adds that the French authorities contem- 
plate expelling from France "every American who 
could not prove" that he was for France and against 
America. 

"Attempts," he continues, "are made to divide 
the Envoys and with that view some civilities are 
shown to Mr. G.[erry] and none to the two others 
[Marshall and Pinckney]. . . . The American Jacob- 
ins here pay him [Gerry] great Court." 1 The little 
New Englander already was yielding to the se- 
ductions of Talleyrand, and was also responsive to 
the flattery of a group of unpatriotic Americans in 
Paris who were buttering their own bread by play- 
ing into the hands of the Directory and the French 
Foreign Office. 

Marshall now beheld a stage of what he believed 
was the natural development of unregulated democ- 
racy. Dramatic events convinced him that he was 
witnessing the growth of license into absolutism. 
Early in December Bonaparte arrived in Paris. 
Swiftly the Conqueror had come from Rastadt, trav- 
eling through France incognito, after one of his light- 
ning-flash speeches to his soldiers reminding them of 
"the Kings whom you have vanquished, the people 
upon whom you have conferred liberty." The young 
general's name was on every tongue. 

Paris was on fire to see and worship the hero. But 
Bonaparte kept aloof from the populace. He made 
himself the child of mystery. The future Emperor o^ 
' Pinckney to King, Paris, Dec. 14, 1797; King, ii, 259-60. 



288 JOHN MARSHALL 

the French, clad in the garments of a plain citizen, 
slipped unnoticed through the crowds. He would 
meet nobody but scholars and savants of world 
renown. These he courted; but he took care that this 
fact was known to the people. In this course he con- 
tinued until the stage was set and the cue for his 
entrance given. 

Finally the people's yearning to behold and pay 
homage to their soldier-statesman becomes a pas- 
sion not to be denied. The envious but servile Direc- 
tory yield, and on December 10, 1797, a splendid 
festival in Bonaparte's honor is held at the Luxem- 
bourg. The scene flames with color : captured battle- 
flags as decorations; the members of the Directory 
appareled as Roman Consuls; foreign ministers in 
their diplomatic costumes; officers in their uni- 
forms; women brilliantly attired in the height of 
fashion. 1 At last the victorious general appears on 
the arm of Talleyrand, the latter gorgeously clad in 
the dress of his high office; but Bonaparte, short, 
slender, and delicate, wearing the plainest clothes 
of the simplest citizen. 

Upon this superb play-acting John Marshall 
looked with placid wonder. Here, then, thought 
this Virginian, who had himself fought for liberty 
on many a battlefield, were the first fruits of French 
revolutionary republicanism. Marshall beheld no 

1 Talleyrand, who gave the f§te, wrote: "I spared no trouble to 
make it brilliant and attractive; although in this I experienced some 
difficulty on account of the vulgarity of the directors' wives who, of 
course, enjoyed precedence over all other ladies." (Memoirs of Tal- 
leyrand: Broglie's ed., i, 197; also see Sloane: Life of Napoleon, ii, 
20; and Lanfrey : Life of Napoleon, i, 254-57.) 



FACING TALLEYRAND 289 

devotion here to equal laws which should shield all 
men, but only adoration of the sword-wielder who 
was strong enough to rule all men. In the fragile, 
eagle-faced little warrior, 1 Marshall already saw the 
man on horseback advancing out of the future; and 
in the thunders of applause he already heard the 
sound of marching armies, the roar of shotted guns, 
the huzzas of charging squadrons. 

All this was something that Jefferson had not seen. 
Jefferson's sojourn in France had been at the time 
when the French Revolution was just sprouting; and 
he foresaw only that beautiful idealism into which 
the glorious dreamers of the time fondly imagined 
the Revolution would flower. 

But Marshall was in Paris after the guillotine had 
done its work; when corruption sat in the highest 
places of government; and when military glory in the 
name of liberty had become the deity of the people. 
So where Jefferson expected that the roses of peace 
would bloom, Marshall saw clusters of bayonets, as 
the fruitage of the French Revolution. 

1 "At first sight he [Bonaparte] seemed ... to have a charming 
face, so much do the halo of victory, fine eyes, a pale and almost 
consumptive look, become a young hero." (Memoirs of Talleyrand: 
Broglie's ed., i, 196.) 



CHAPTER VIII 

THE AMERICAN MEMORIAL 

Separated far from Europe, we mean not to mingle in her quarrels. (Mar- 
shall.) 

A fraudulent neutrality is no neutrality at all. (Marshall.) 
We have a very considerable party in America who are strongly in our inter- 
est. (Madame de Villette.) 

Four days after the festival of triumph to Bona- 
parte, Talleyrand's agents resumed their work. The 
sordid scenes were repeated, but their monotony was 
broken. Now the lady of the plot appeared upon the 
scene. In the long, vexed, and fruitless days of their 
stay in Paris, the American envoys, it seems, were 
not without the solace and diversion of the society 
of the French Capital. 

Among the attractive feminine acquaintances they 
made, one was undoubtedly an agent of the French 
Foreign Office. Madame de Villette was one of the 
most engaging women in the French Capital. 1 Cul- 
tivated, brilliant, and altogether charming, she made 
herself particularly agreeable to the American en- 
voys. She and Marshall became especially good 

1 Am. St. Prs., For. Rel., ii, 167. This lady was "understood to be 
Madame de Villette, the celebrated Belle and Bonne of Voltaire." 
(Lyman: Diplomacy of the United States, ii, footnote to 336.) Lyman 
says that "as to the lady an intimation is given that that part of 
the affair was not much to the credit of the Americans." (And see 
Austin: Gerry, ii, footnote to 202.) Madame de Villette was the 
widow of a Royalist colonel. Her brother, an officer in the King's 
service, was killed while defending Marie Antoinette. Robespierre pro- 
scribed Madame de Villette and she was one of a group confined in 
prison awaiting the guillotine, of whom only a few escaped. (lb.) 



THE AMERICAN MEMORIAL 291 

friends; but Madame de Villette ventured no diplo- 
matic suggestions to him, notwithstanding his easy 
good nature. She was far too good a judge of char- 
acter to commit that indiscretion. So was Talley- 
rand, who by this time had begun to appreciate 
Marshall's qualities. But Pinckney, hearty, hand- 
some man of the w T orld, but without Marshall's 
penetration and adroitness, was another matter. 
Gerry the intriguers could already count upon; and 
only one other member of the commission was neces- 
sary to their ends. Perhaps Pinckney might be won 
over by this captivating Frenchwoman. On some 
occasion Madame de Villette approached him: — 

"Why will you not lend us money?" said she to 
Pinckney. "If you were to make us a loan, all mat- 
ters will be adjusted. When you were contending for 
your Revolution we lent you money." Pinckney 
pointed out the differences — that America had 
requested a loan of France, and France now demanded 
a loan of America. "Oh, no," said she. "We do not 
make a demand; we think it more delicate that the 
offer should come from you; but M. Talleyrand has 
mentioned to me (who am surely not in his confi- 
dence) the necessity of your making us a loan, and I 
know that he has mentioned it to two or three others; 
and that you have been informed of it; and I will as- 
sure you that, if you remain here six months longer, 
you will not advance a single step further in your 
negotiations without a loan." 

If that is so, bluntly answered Pinckney, the en- 
voys might as well leave at once. "Why," exclaimed 
Talleyrand's fair agent, "that might possibly lead to 



292 JOHN MARSHALL 

a rupture, which you had better avoid; for we have a 
very considerable party in America who are strongly 
in our interest." 1 

The fox-like Talleyrand had scented another hole 
by which he might get at his elusive quarry. "Every 
man has his price" was his doctrine; and his experi- 
ence hitherto had proved it sound. He found that 
the brilliant Paris adventurer, Beaumarchais, had a 
lawsuit against the State of Virginia. Beaumarchais 
had won this suit in the lower court and it was now 
pending on appeal. John Marshall was his attorney. 2 
Here, then, thought Talleyrand, was the way to 
reach this unknown quantity in his problem. 

On December 17, Marshall, happening into Gerry's 

1 Am. St. Prs., For. Rel, ii, 167. 

2 Beaumarchais was one of the most picturesque figures of that 
theatrical period. He is generally known to-day only as the author 
of the operas, The Barber of Seville and the Marriage of Figaro. His 
suit was to recover a debt for supplies furnished the Americans during 
the Revolution. Silas Deane, for our Government, made the original 
contract with Beaumarchais. In addition to the contest before the 
courts, in which Marshall was Beaumarchais's attorney, the matter 
was before Congress three times during the claimant's life and, 
through his heirs, twice after his death. In 1835 the case was set- 
tled for 800,000 francs, which was nearly 2,500,000 francs less than 
Alexander Hamilton, in an investigation, ordered by Congress, found 
to be due the Frenchman; and 3,500,000 livres less than Silas Deane 
reported that America owed Beaumarchais. 

Arthur Lee, Beaumarchais's enemy, to whom Congress in 1787 left 
the adjustment, had declared that the Frenchman owed the Unrted 
States two million francs. This prejudiced report was the cause of 
almost a half-century of dispute, and of gross injustice. (See Lomenie: 
Beaumarchais et son temps; also, Channing, iii, 283, and references 
in the footnote; and Perkins: France in the American Revolution. 
Also see Henry to Beaumarchais, Jan. 8, 1785; Henry, iii, 264, in 
which Henry says: "I therefore feel myself gratified in seeing, as I 
think, ground for hope that yourself, and those worthy and suffering 
of ours in your nation, who in so friendly a manner advanced their 
money and goods when we were in want, will be satisfied that nothing 
has been omitted which lay in our power towards paying them.") 



THE AMERICAN MEMORIAL 293 

apartment, found Bellamy there. Beaumarchais had 
given a dinner to Marshall and his fellow envoys, 
from which Bellamy had been kept by a toothache. 
The envoys had returned Beaumarchais's courtesy; 
and he had retired from this dinner "much in- 
disposed." * Since then Marshall had not seen his 
client. Bellamy casually remarked that he had not 
known, until within a short time, that Marshall was 
the attorney for Beaumarchais, who, he said, had 
very high regard for his Virginia attorney. 

Marshall, his lawyer's instincts at once aroused, 
told Bellamy that Beaumarchais's case was of very 
great magnitude and that he was deeply interested 
in it. Whereupon, in a low tone, spoken aside for 
his ear only, Bellamy told Marshall that, in case 
the latter won the suit, Beaumarchais would "sac- 
rifice £50,000 Sterling of it as the private grat- 
ification" demanded by the Directory and Talley- 
rand, "so that the gratification might be made 
without any actual loss to the American govern- 
ment." Marshall rejected this offer and informed 
Pinckney of it. 2 

Marshall's character is revealed by the entry he 
promptly made in his Journal. " Having been origi- 
nally the Counsel of Mr. de Beaumarchais, I had 
determined & so I informed Genl. Pinckney, that I 
would not by my voice establish any argument in his 
favor, but that I would positively oppose any admis- 
sion of the claim of any French citizen if not accom- 
panied with the admission of claims of the American 

1 Marshall's Journal, ii, Dec. 17, 36. 

2 Am. St. Prs., For. Rel, ii, 167; Marshall's Journal, Dec. 17, 36-37. 



294 JOHN MARSHALL 

citizens to property captured and condemned for 
want of a Role dequipage." * 

Bellamy then urged upon Gerry his plan of the 
Marshall-Beaumarchais arrangement. Talleyrand 
had been entertaining Gerry privately, and the flat- 
tered New Englander again wished to call on the 
French Minister, "to return the civility " by inviting 
Talleyrand to dinner. 2 To Talleyrand, then, went 
Gerry in company with Bellamy and asked the 
Foreign Minister to dine with him. Then Gerry 
tediously reviewed the situation, concluding in a 
manner that must have amused the bored Talley- 
rand: He would rather see the envoys depart for 
some city in another nation, said Gerry, until the 
Directory would receive them, than to stay in Paris 
under the circumstances. 

Gerry was sure that the French diplomat was 
alarmed by this stern threat. "M. Talleyrand ap- 
peared to be uneasy at this declaration," he told 
his colleagues. Still, Talleyrand avoided "saying 
a word on it"; but he did say that Bellamy's repre- 
sentations "might always be relied on." Talleyrand 
declared that he would go further; he would him- 
self write out his propositions. This he proceeded to 
do, held the writing before Gerry's eyes and then 
burned it; after this performance Talleyrand said 
he would dine with Gerry " the decade [ten days] 
after the present." 3 

1 Marshall's Journal, Dec. 17, 38. The "Role d'Squipage" was a 
form of ship's papers required by the French Government which it 
was practically impossible for American masters to furnish; yet, 
without it, their vessels were liable to capture by French ships under 
one of the many offensive decrees of the French Government. 

2 Marshall's Journal, Dec. 17, 38. 3 Am. St. Prs., For. Bel, ii, 168. 



THE AMERICAN MEMORIAL 295 

Meanwhile, however, Gerry dined with the For- 
eign Minister. It was not a merry function. Aside 
from his guest of honor, the French Minister also 
had at his board Hottenguer, Bellamy, and Hauteval. 
Gerry could not speak French and Hauteval acted 
as translator. It must have been a pallid feast; the 
brilliant, witty, accomplished Talleyrand, man of 
the world, bon vivant, and lover of gayety; the sol- 
emn, dull, and rigid Gerry; the three trained French 
agents, one of them, as interpreter, the only means 
of general communication. 1 On rising from the 
table, Hottenguer at once brought up the question 
of the bribe. Would the envoys now give it? Had 
they the money ready? Gerry answered no! 2 

Talleyrand, by now the mouthpiece of the rising 
Bonaparte, had proposed terms of peace to Great 
Britain; "the price was a Bribe of a Million Ster- 
ling to be divided among Directors, Ministers, and 
others. Talleyrand's Department was to share one 
hundred thousand Pounds Sterling." The British 
Government declined. 3 

King in London hastens to inform his American 
diplomatic associates in Paris of this offer, and cau- 
tions the envoys to act in concert. To Pinckney, 
King writes in cipher his anxiety about Gerry, whose 
integrity King had hoped would "overcome a miser- 
able vanity and a few little defects of character . . . 

1 This account in the dispatches is puzzling, for Talleyrand spoke 
English perfectly. 

2 Am. St. Prs., For. Rel., ii, 230. 

1 King to Secretary of State (in cipher) London, Dec. 23, 1797; 
King, ii, 261. King to Pinckney, Marshall, and Gerry, Dec. 23, 1797; 
ib., 263. 



296 JOHN MARSHALL 

which I now fear have been discovered by those who 
will be assiduous to turn them to mischief." 

From the same source Pinckney is warned: "You 
must not appear to suspect what you may really 
know; . . . you must . . . save him [Gerry] and, in 
doing so, prevent the Division that would grow out 
of a Schism in your Commission." Gerry will be all 
right, thinks King, "unless Pride shall be put in 
opposition to Duty, or Jealousy shall mislead a mind 
neither ingenuous nor well organized, but habitually 
suspicious, and, when assailed by personal vanity, 
inflexible." 2 

Pinckney informs King of the situation in Paris 
on December 27, declaring "that we ought to re- 
quest our Passports and no longer exhibit to the 
World the unprecedented Spectacle of three Envoys 
Extraordinary from a free and independent nation, 
in vain soliciting to be heard." 2 

Marshall now insists that the American case be 
formally stated to the French Government. Gerry 
at last agrees. 3 Marshall, of course, prepares this 
vastly important state paper. For two weeks he 
works over the first half of this historic document. 
"At my request Genl. Pinckney & Mr. Gerry met in 
my room & I read to them the first part of a letter 
to the Minister of Exterior Relations which consisted 
of a justification of the American Government," 4 
he relates in his Journal. 

Over the last half of the American case, Marshall 

1 King to Pinckney (in cipher) London, Dec. 24, 1797; King, ii, 
263-64. 

* Pinckney to King, Dec. 27, 1797; King, ii, 266-67. 

* Marshall's Journal, Dec. 18, 1797, 38. * lb., Jan. 2, 1798, 39. 



THE AMERICAN MEMORIAL 297 

spends seven days. "The Second part of the letter 
to the Minister of Exterior Relations, comprehend- 
ing the claims of the United States upon France, 
being also prepared, I read it to Genl Pinckney & 
Mr. Gerry." Both sections of Marshall's letter to 
Talleyrand were submitted to his colleagues for 
suggestions. 1 

It was hard work to get Gerry to examine and sign 
the memorial. "I had so repeatedly pressed Mr. 
Gerry," notes Marshall, "on the subject of our letter 
prepared for the Minister of Exterior Relations & 
manifested such solicitude for its being so completed 
as to enable us to send it, that I had obviously of- 
fended. Today I have urged that subject and for the 
last time." 2 Two days later Marshall chronicles 
that "Mr. Gerry finished the examination of our 
letter to the Minister of Exterior Relations." 3 A 
week later the letter, translated and signed, is de- 
livered to Talleyrand. 4 

Upon this memorial were based future and suc- 
cessful American negotiations, 5 and the statement 
by Marshall remains to this day one of the ablest 
state papers ever produced by American diplomacy. 

Marshall reminds Talleyrand of the frequent and 
open expressions of America's regard for France, 
given "with all the ardor and sincerity of youth." 
These, he says, were considered in America "as evi- 
dencing a mutual friendship, to be as durable as the 
republics themselves." Unhappily the scene changed, 
says Marshall, and "America looks around in vain 

1 Marshall's Journal, Jan. 2 and 10, 39. 

2 lb., Jan. 22, 40. 3 lb., 40. 4 lb., Jan. 31. 
6 The Ellsworth mission. (See infra, chap, xu.) 



298 JOHN MARSHALL 

for the ally or the friend." He pictures the con- 
trast in the language and conduct of the French 
Government with what had passed before, and says 
that the French charge of American partiality to- 
ward Great Britain is unfounded. 

Marshall then reviews the international situation 
and makes it so plain that America could not take 
part in the European wars, that even Talleyrand 
was never able to answer the argument, "When 
that war [began] which has been waged with such 
unparalleled fury," he writes, "which in its vast 
vicissitudes of fortune has alternately threatened 
the very existence of the conflicting parties, but 
which, in its progress, has surrounded France with 
splendor, and added still more to her glory than 
to her territory," America found herself at peace 
with all the belligerent Powers; she was connected 
with some of them by treaties of amity and com- 
merce, and with France by a treaty of alliance. 

But these treaties, Marshall points out, did not 
require America to take part in this war. "Being 
bound by no duty to enter into the war, the Govern- 
ment of the United States conceived itself bound by 
duties, the most sacred, to abstain from it." Upon 
the ground that man, even in different degrees of 
social development, is still the natural friend of 
man, "the state of peace, though unstipulated by 
treaty," was the only course America could take. 
"The laws of nature" enjoined this, Marshall an- 
nounces; and in some cases "solemn and existing en- 
gagements . . . require a religious observance" of it. 1 
1 Am. St. Prs., For. ReL, ii, 169. 



THE AMERICAN MEMORIAL 299 

Such was the moral ground upon which Marshall 
built his argument, and he strengthened it by prac- 
tical considerations. "The great nations of Europe," 
he writes, "either impelled by ambition or by exist- 
ing or supposed political interests, peculiar to them- 
selves, have consumed more than a third of the 
present century in wars." The causes that produced 
this state of things "cannot be supposed to have been 
entirely extinguished, and humanity can scarcely 
indulge the hope that the temper or condition of 
man is so altered as to exempt the next century from 
the ills of the past. Strong fortifications, powerful 
navies, immense armies, the accumulated wealth of 
ages, and a full population, enable the nations of 
Europe to support those wars." 1 

Problems of this character, Marshall explains, 
must be solved by European countries, not by the 
United States. For, "encircled by no dangerous 
Powers, they [the Americans] neither fear, nor are 
jealous of their neighbors," says Marshall, "and are 
not, on that account, obliged to arm for their own 
safety." He declares that America, separated from 
Europe "by a vast and friendly ocean," has "no 
motive for a voluntary war," but "the most power- 
ful reasons to avoid it." 2 

America's great and undefended commerce, made 
necessary by her then economic conditions, would 
be, Marshall contends, the "immediate and certain 
victim" of engaging in European wars; and he then 
demonstrates the disastrous results to America of 
departing from her policy of Neutrality. 

1 Am. St. Prs., For. Rel., ii, 169-70. a 76., 170. 



300 JOHN MARSHALL 

The immense and varied resources of the United 
States can only be used for self-defense, reasons the 
Virginia lawyer. "Neither the genius of the nation, 
nor the state of its own finances admit of calling its 
citizens from the plough but to defend their own 
liberty and their own firesides." 

He then points out that, in addition to the moral 
wrong and material disaster of America's taking part 
in France's wars, such a course means the launching 
into the almost boundless ocean of European poli- 
tics. It implies "contracting habits of national con- 
duct and forming close political connections which 
must have compromitted the future peace of the na- 
tion, and have involved it in all the future quarrels 
of Europe." 

Marshall then describes the "long train of armies, 
debts, and taxes, checking the growth, diminishing 
happiness, and perhaps endangering the liberty of 
the United States, which must have followed." And 
all this for what? Not to fulfill America's treaties; 
"not to promote her own views, her own objects, her 
own happiness, her own safety; but to move as a 
satellite around some other greater planet, whose 
laws she must of necessity obey." 1 

"It was believed," he declares, "that France 
would derive more benefit from the Neutrality of 
America than from her becoming a party in the 
war." Neutrality determined upon, he insists that 
" increased motives of honor and of duty commanded 
its faithful observance. ... A fraudulent neutrality 
is no neutrality at all. . . . A . . . nation which would 
1 Am. St. Prs., For. Rel, ii, 170. 



THE AMERICAN MEMORIAL 301 

be admitted to its privileges, should also perform the 
duties it enjoins." 

If the American Government, occupying a neutral 
position, had granted "favors unstipulated by treaty, 
to one of the belligerent Powers which it refused to 
another, it could no longer have claimed the immuni- 
ties of a situation of which the obligations were for- 
gotten; it would have become a party to the war as 
certainly as if war had been openly and formally de- 
clared, and it would have added to the madness of 
wantonly engaging in such a hazardous conflict, the 
dishonor of insincere and fraudulent conduct; it 
would have attained, circuitously, an object which it 
could not plainly avow or directly pursue, and would 
have tricked the people of the United States into a 
war which it would not venture openly to declare. " 

Then follows this keen thrust which Talleyrand 
could not evade: "It was a matter of real delight to 
the government and people of America," suavely 
writes Marshall, "to be informed that France did 
not wish to interrupt the peace they [the American 
people] enjoyed." 

Marshall then makes a sudden and sharp attack 
memorable in the records of diplomatic dueling. He 
calls attention to the astounding conduct of the 
French Minister on American soil immediately after 
the American Government had proclaimed its Neu- 
trality to the world and had notified American citi- 
zens of the duties which that Neutrality enjoined. In 
polite phrase he reminds Talleyrand of Genet's as- 
sumption of "the functions of the government to 
which he was deputed, . . . although he was not even 



302 JOHN MARSHALL 

acknowledged as a minister or had reached the 
authority which should inspect his credentials." 

But, notwithstanding this, says Marshall, "the 
American Government resolved to see in him [Genet] 
only the representative of a republic to which it was 
sincerely attached" and "gave him the same warm 
and cordial reception which he had experienced from 
its citizens without a single exception from Charles- 
ton to Philadelphia." 

Two paragraphs follow of fulsome praise of France, 
which would seem to have been written by Gerry, 
who insisted on revising the memorial. 1 But in swift 
contrast Marshall again throws on the screen the 
indefensible performances of the French Minister in 
America and the tolerance with which the American 
Government treated them. "In what manner would 
France have treated any foreign minister, who 
should have dared to so conduct himself toward this 
republic? ... In what manner would the American 
Government have treated him [Genet] had he been 
the representative of any other nation than France?" 

No informed man can doubt the answer to these 
questions, says Marshall. "From the Minister of 
France alone could this extraordinary conduct be 
borne with temper." But "to have continued to bear 
it without perceiving its extreme impropriety would 
have been to have merited the contempt" of the 
world and of France herself. "The Government of 
the United States did feel it," declares Marshall, but 
did not attribute Genet's misconduct to the French 
Nation. On the contrary, the American Government 

1 Marshall's Journal, 39; also see Austin: Gerry, ii, chap. VI. 



THE AMERICAN MEMORIAL 303 

"distinguished strongly between the [French] Gov- 
ernment and its Minister," and complained "in the 
language of a friend afflicted but not irritated." 
Genet's recall "was received with universal joy" in 
America, "as a confirmation that his . . . conduct 
was attributable only to himself " ; and "not even the 
publication of his private instructions could per- 
suade the American Government to ascribe any part 
of it to this [French] republic." 1 

Marshall further points out "the exertions of the 
United States to pay up the arrearages" of their debt 
to France; America's "disinterested and liberal ad- 
vances to the sufferers of St. Domingo . . . whose 
recommendation was that they were Frenchmen and 
unfortunate"; and other acts of good-will of the 
American Government toward the French Republic. 

He then makes a characteristically clear and con- 
vincing argument upon the points at issue between 
France and America. France complained that one 
article of the Jay Treaty provided that in case of war 
the property of an enemy might be taken by either 
out of the ships of the other; whereas, by the Treaty 
of 1778 between France and America, neither party 
should take out of the vessels of the other the goods 
of its enemy. France contended that this was a dis- 
crimination against her in favor of Great Britain. 
Marshall shows that this provision in the Jay Treaty 
was merely the statement of the existing law of 
nations, and that therefore the Jay Treaty gave no 
new rights to Great Britain. 

Marshall reminds Talleyrand that any two na- 
1 Am. St. Prs., Far. Rel., ii, 170-71. 



304 JOHN MARSHALL 

tions by treaty have the power to alter, as to their 
mutual intercourse, the usages prescribed by inter- 
national law; that, accordingly, France and America 
had so changed, as between themselves, the law of 
nations respecting enemy's goods in neutral bottoms. 
He cites the ordinance of France herself in 1744 and 
her long continued practice under it; and he answers 
so overwhelmingly the suggestion that the law of 
nations had not been changed by the rules laid down 
by the "Armed Neutrality" of the Northern Powers 
of Europe in the war existing at the time of that 
confederation, that the resourceful Talleyrand made 
no pretense of answering it. 

The stipulation in the Franco-American Treaty of 
"protecting the goods of the enemy of either party 
in the vessels of the other, and in turn surrendering 
its own goods found in the vessels of the enemy," 
extended, Marshall insists, to no other nation except 
to France and America; and contends that this could 
be changed only by further specific agreements be- 
tween those two nations. 

Marshall wishes "that the principle that neutral 
bottoms shall make neutral goods" were universally 
established, and declares that that principle "is per- 
haps felt by no nation on earth more strongly than 
by the United States." On this point he is emphatic, 
and reiterates that "no nation is more deeply inter- 
ested in its establishment" than America. "It is an 
object they [the United States] have kept in view, and 
which, if not forced by violence to abandon it, they 
will pursue in such manner as their own judgment 
may dictate as being best calculated to attain it." 



THE AMERICAN MEMORIAL 305 

"But," he says, "the wish to establish a prin- 
ciple is essentially different from a determination 
that it is already established. . . . However solici- 
tous America might be to pursue all proper means, 
tending to obtain for this principle the assent of 
any or all of the maritime Powers of Europe, she 
never conceived the idea of attaining that consent 
by force." l "The United States will only arm 
to defend their own rights," declares Marshall; 
"neither their policy nor their interests permit 
them to arm. in order to compel a surrender of the 
rights of others." 

He then gives the history of the Jay Treaty, and 
points out that Jay's particular instructions not to 
preserve peace with Great Britain, "nor to receive 
compensations for injuries sustained, nor security 
against their future commission, at the expense of 
the smallest of its [America's] engagements to 
France," 2 were incorporated in the treaty itself, in 
the clause providing that "nothing in this treaty 
shall, however, be construed or operate contrary to 
former and existing public treaties with other sov- 
ereignties or states." 3 So careful, in fact, was Amer- 
ica to meet the views of France that "previous to its 
ratification" the treaty was submitted to the French 
Minister to the United States, who did not even com- 
ment on the article relating to enemy's goods in neu- 
tral bottoms, but objected only to that enlarging 
the list of contraband; 4 and the American Govern- 
ment went to extreme lengths to meet the views of 

1 Am. St. Prs. t For. Rel, ii, 172. 

2 lb., 173. 3 lb. 4 lb. 



306 JOHN MARSHALL 

the French Minister, who finally appeared to be 
satisfied. 

The articles of contraband enumerated in the Jay- 
Treaty, to which the French Government objected, 
says Marshall, were contraband by the laws of 
nations and so admitted by France herself in her 
treaties with other countries. 1 

Answering the charge that in the treaty the United 
States had agreed that more articles should be con- 
traband than she had in compacts with other Powers, 
Marshall explains that "the United States, desirous 
of liberating commerce, have invariably seized every 
opportunity which presented itself to diminish or 
remove the shackles imposed on that of neutrals. In 
pursuance of this policy, they have on no occasion 
hesitated to reduce the list of contraband, as be- 
tween themselves and any nation consenting to such 
reduction. Their preexisting treaties have been with 
nations as willing as themselves to change this old 
rule." But these treaties leave other governments, 
who do not accept the American policy, "to the law 
which would have governed had such particular 
stipulation never been made" — that is, to the law 
of nations. 

Great Britain declined to accept this American 
view of the freedom of the seas; and, therefore, 
America was forced to leave that nation where it 
had found her on the subject of contraband and 
freedom of ocean-going commerce. Thus, contends 
Marshall, the Jay Treaty "has not added to the 
catalog of contraband a single article . . . ceded no 
1 Am. St. Prs., For. Bel, ii, 175. 



THE AMERICAN MEMORIAL 307 

privilege . . . granted no right," nor changed, in the 
most minute circumstance, the preexisting situation 
of the United States in relation either to France or 
to Great Britain. Notwithstanding these truths, 
"the Government of the United States has hastened 
to assure its former friend [France], that, if the 
stipulations between them are found oppressive in 
practice, it is ready to offer up those stipulations a 
willing sacrifice at the shrine of friendship." 1 

Stating the general purposes of the United States, 
Marshall strikes at the efforts of France to compel 
America to do what France wishes and in the manner 
that France wishes, instead of doing what American 
interests require and in the manner America thinks 
wisest. 

The American people, he asserts, "must judge 
exclusively for themselves how far they will or 
ought to go in their efforts to acquire new rights or 
establish new principles. When they surrender this 
privilege, they cease to be independent, and they will 
no longer deserve to be free. They will have surren- 
dered into other hands the most sacred of deposits — ■ 
the right of self-government; and instead of appro- 
bation, they will merit the contempt of the world." 2 

Marshall states the economic and business reasons 
why the United States, of all countries, must depend 
upon commerce and the consequent necessity for 
the Jay Treaty. He tartly informs Talleyrand that 
in doing so the American Government was "trans- 
acting a business exclusively its own." Marshall 
denies the insinuation that the negotiations of the 
1 Am. St. Prs., For. ReL, ii, 175. a lb., 176. 



308 JOHN MARSHALL 

Jay Treaty had been unusually secret, but sarcasti- 
cally observes that "it is not usual for nations about 
to enter into negotiations to proclaim to others the 
various objects to which those negotiations may 
possibly be directed. Such is not, nor has it ever 
been, the principle of France." To suppose that 
America owed such a duty to France, "is to imply 
a dependence to which no Government ought will- 
ingly to submit." * 

Marshall then sets forth specifically the American 
complaints against the French Government, 2 and 
puts in parallel columns the words of the Jay Treaty 
to which the French objected, and the rules which 
the French Directory pretended were justified by 
that treaty. So strong is Marshall's summing up of 
the case in these portions of the American memorial 
that it is hard for the present-day reader to see how 
even the French Directory of that lawless time could 
have dared to attempt to withstand it, much less to 
refuse further negotiations. 

Drawing to a conclusion, Marshall permits a lofty 
sarcasm to lighten his weighty argument. "America 
has accustomed herself," he observes, "to perceive 
in France only the ally and the friend. Consulting 
the feelings of her own bosom, she [America] has 
believed that between republics an elevated and 
refined friendship could exist, and that free nations 
were capable of maintaining for each other a real and 
permanent affection. If this pleasing theory, erected 
with so much care, and viewed with so much delight, 
has been impaired by experience, yet the hope con- 
1 Am. St. Prs., For. ReL, ii, 177. 2 lb., 178. 



THE AMERICAN MEMORIAL 309 

tinues to be cherished that this circumstance does 
not necessarily involve the opposite extreme." l 

Then, for a moment, Marshall indulges his elo- 
quence: "So intertwined with every ligament of her 
heart have been the cords of affection which bound 
her to France, that only repeated and continued acts 
of hostility can tear them asunder." 2 

Finally he tells Talleyrand that the American en- 
voys, "searching only for the means of effecting 
the objects of their mission, have permitted no 
personal considerations to influence their conduct, 
but have waited, under circumstances beyond meas- 
ure embarrassing and unpleasant, with that respect 
which the .American Government has so uniformly 
paid to that of France, for permission to lay before 
you, citizen Minister, these important communica- 
tions with which they have been charged." But, "if 
no such hope" remains, "they [the envoys] have 
only to pray that their return to their own country 
may be facilitated." 3 

But Marshall's extraordinary power of statement 
and logic availed nothing with Talleyrand and the 
Directory. "I consider Marshall, whom I have 
heard speak on a great subject, 4 as one of the most 
powerful reasoners I ever met with either in public 
or in print," writes William Vans Murray from The 
Hague, commenting on the task of the envoys. 
"Reasoning in such cases will have a fine effect in 
America, but to depend upon it in Europe is really to 
place Quixote with Gines de Passamonte and among 

1 Am. St. Prs., For. Rel., ii, 181. J lb., 181-82. « lb., 182. 

4 British Debts cases. (See vol. i, chap, v.) 



310 JOHN MARSHALL 

the men of the world whom he reasoned with, and so 
sublimely, on their way to the galleys. They answer 
him, with you know stones and blows, though the 
Knight is an armed as well as an eloquent Knight." l 

The events which had made Marshall and Pinck- 
ney more resolute in demanding respectful treatment 
had made Gerry more pliant to French influence. 
"Mr. Gerry is to see Mr. Talleyrand the day after 
to-morrow. Three appointments have been made 
by that gentleman," Marshall notes in his Journal, 
"each of which Mr. Gerry has attended and each 
of which Mr. Talleyrand has failed to attend; nor 
has any apology for these disappointments been 
thought necessary." 2 Once more Gerry waits on 
Talleyrand, who remains invisible. 3 And now again 
Beaumarchais appears. The Directory issues more 
and harsher decrees against American commerce. 
Marshall's patience becomes finite. "I prepared to- 
day a letter to the Minister remonstrating against 
the decree, . . . subjecting to confiscation all neutral 
vessels having on board any article coming out of 
England or its possessions." The letter closes by 
"requesting our passports." 4 

Marshall's memorial of the American case re- 
mained unread. One of Talleyrand's many secre- 
taries asked Gerry "what it contained? (for they 
could not take the trouble to read it) and he added 

1 Murray to J. Q. Adams, Feb. 20, 1798, Letters: Ford, 379. Mur- 
ray thought Marshall's statement of the American case "unanswer- 
able" and "proudly independent." {lb., 395.) Contrast Murray's 
opinion of Marshall with his description of Gerry, supra, chap, vn, 
258, and footnote. 

2 Marshall's Journal, Jan. 31, 1798, 40. 
$ lb., Feb. 2. 4 lb., Feb. 2, 41. 




ELi'.miM.i: <.i;i;i;v 



THE AMERICAN MEMORIAL 311 

that such long letters were not to the taste of the 
French Government who liked a short address com- 
ing straight to the point." x Gerry, who at last saw 
Talleyrand, "informed me [Marshall] that communi- 
cations & propositions had been made to him by that 
Gentleman, which he [Gerry] was not at liberty to 
impart to Genl Pinckney or myself." Upon the out- 
come of his secret conferences with Talleyrand, said 
Gerry, "probably depended peace or war." 2 

Gerry's "communication necessarily gives birth 
to some very serious reflections," Marshall confides 
to his Journal. He recalls the attempts to frighten 
the envoys "from our first arrival" — the threats 
of "a variety of ills . . . among others with being 
ordered immediately to quit France," none of them 
carried out; "the most haughty & hostile conduct 
. . . towards us & our country and yet ... an un- 
willingness ... to profess the war which is in fact 
made upon us." 3 

A French agent, sent by the French Consul- 
General in America, just arrived in Paris, "has 
probably brought with him," Marshall concludes, 
"accurate details of the state of parties in Amer- 
ica. ... I should think that if the French Govern- 
ment continues its hostility and does not relax some 
little in its hauteur its party in the United States will 
no longer support it. I suspect that some intelli- 
gence of this complexion has been received . . . 
whether she [France] will be content to leave us our 
Independence if she can neither cajole or frighten us 

1 Marshall's Journal, Feb. 3, 42. 

2 lb., Feb. 4, 42. 3 lb., 42-43, 46. 



312 JOHN MARSHALL 

out of it or will even endeavor to tear it from us by 
open war there can be no doubt of her policy in one 
respect — she will still keep up and cherish, if it be 
possible, . . . her party in the United States." What- 
ever course France takes, Marshall thinks will be 
"with a view to this her primary object." 

Therefore, reasons Marshall, Talleyrand will ma- 
neuver to throw the blame on Pinckney and him- 
self if the mission fails, and to give Gerry the credit 
if it succeeds. "I am led irresistibly by this train 
of thought to the opinion that the communication 
made to Mr. Gerry in secret is a proposition to fur- 
nish passports to General Pinckney and myself and 
to retain him for the purpose of negotiating the dif- 
ferences between the two Republics." This would 
give the advantage to the French party in any 
event. 

"I am firmly persuaded of his [Talleyrand's] un- 
willingness to dismiss us while the war with England 
continues in its present uncertain state. He believed 
that Genl Pinckney and myself are both determined 
to remain no longer unless we can be accredited." 
Gerry had told Marshall that he felt the same way; 
"but," says Marshall, "I am persuaded the Minister 
[Talleyrand] does not think so. He would on this 
account as well as on another which has been the 
base of all propositions for an accommodation [the 
loan and the bribe] be well pleased to retain only one 
minister and to chuse that one [Gerry]." ] 

Marshall and Pinckney decided to let Gerry go his 
own gait. "We shall both be happy if, by remaining 

1 Marshall's Journal, Feb. 4, 42-45. 



THE AMERICAN MEMORIAL 313 

without us, Mr. Gerry can negotiate a treaty which 
shall preserve the peace without sacrificing the inde- 
pendence of our country. We will most readily offer 
up all personal considerations as a sacrifice to ap- 
pease the haughtiness of this Republic." * 

Marshall gave Gerry the letter on the decree and 
passport question "and pressed his immediate atten- 
tion to it." But Gerry was too excited by his secret 
conferences with Talleyrand to heed it. Time and 
again Gerry, bursting with importance, was closeted 
with the Foreign Minister, hinting to his colleagues 
that he held peace or war in his hand. Marshall 
bluntly told him that Talleyrand's plan now was 
"only to prevent our taking decisive measures until 
the affairs of Europe shall enable France to take 
them. I have pressed him [Gerry] on the subject of 
the letter concerning the Decree but he has not 
yet read it." 2 

Talleyrand and Gerry's "private intercourse still 
continues," writes Marshall on February 10. "Last 
night after our return from the Theatre Mr. Gerry 
told me, just as we were separating to retire each to 
his own apartment, that he had had in the course of 
the day a very extraordinary conversation with" a 
clerk of Talleyrand. It was, of course, secret. Mar- 
shall did not want to hear it. Gerry said he could tell 
his colleagues that it was on the subject of money. 
Then, at last, Marshall's restraint gave way momen- 
tarily and his anger, for an instant, blazed. Money 
proposals were useless; Talleyrand was playing 
with the Americans, he declared. "Mr. Gerry was 

1 Marshall's Journal, Feb. 5, 45-46. 2 lb., Feb. 6 and 7, 46. 



314 JOHN MARSHALL 

a little warm and the conversation was rather un- 
pleasant. A solicitude to preserve harmony re- 
strained me from saying all I thought." * 

Money, money, money! Nothing else would do! 
Gerry, by now, was for paying it. No answer yet 
comes to the American memorial delivered to Talley- 
rand nearly three weeks before. Marshall packs his 
belongings, in readiness to depart. An unnamed 
person 2 calls on him and again presses for money; 
France is prevailing everywhere; the envoys had 
better yield; why resist the inevitable, with a thou- 
sand leagues of ocean between them and home? 
Marshall answers blandly but crushingly. 

Again Talleyrand's clerk sees Gerry. The three 
Americans that night talk long and heatedly. Mar- 
shall opposes any money arrangement; Gerry urges 
it "very decidedly"; while Pinckney agrees with 
Marshall. Gerry argues long about the horrors of 
war, the expense, the risk. Marshall presents the 
justice of the American cause. Gerry reproaches 
Marshall with being too suspicious. Marshall pa- 
tiently explains, as to a child, the real situation. 
Gerry again charges Marshall and Pinckney with 
undue suspicion. Marshall retorts that Gerry "could 
not answer the argument but by misstating it." The 
evening closes, sour and chill. 3 

The next night the envoys once more endlessly 

1 Marshall's Journal, Feb. 10, 47-48. 

2 Undoubtedly Beaumarchais. Marshall left his client's name blank 
in his Journal, but Pickering, on the authority of Pinckney, in the 
official copy, inserted Beaumarchais's name in later dates of the 
Journal. 

3 Marshall's Journal, Feb. 26, 52-60. 



THE AMERICAN MEMORIAL 315 

debate their course. Marshall finally proposes that 
they shall demand a personal meeting with Talley- 
rand on the real object of the mission. Gerry stub- 
bornly dissents and finally yields, but indulges in 
long and childish discussion as to what should be said 
to Talleyrand, confusing the situation with every 
word. 1 Talleyrand fixes March 2 for the interview. 

The following day Marshall accidentally discovers 
Gerry closeted with Talleyrand's clerk, who came 
to ask the New Englander to attend Talleyrand "in 
a particular conversation." Gerry goes, but reports 
that nothing important occurred. Then it comes out 
that Talleyrand had proposed to get rid of Marshall 
and Pinckney and keep Gerry. Gerry admits it. 
Thus Marshall's forecast made three weeks earlier 2 
is proved to have been correct. 

At last, for the first time in five months, the three 
envoys meet Talleyrand face to face. Pinckney 
opens and Talleyrand answers. Gerry suggests a 
method of making the loan, to which Talleyrand 
gives qualified assent. The interview seems at an 
end. Then Marshall comes forward and states the 
American case. There is much parrying for an 
hour. 3 

The envoys again confer. Gerry urges that their 
instructions permit them to meet Talleyrand's de- 
mands. He goes to Marshall's room to convince the 
granite-like Virginian, who would not yield. "I told 
him," writes Marshall, "that my judgment was not 

1 Marshall's Journal, Feb. 27, 61-67. 

2 lb., Feb. 28, 67-68. See supra, 312. 

3 Am. St. Prs., For. Rel, ii, 186-87; Marshall's Journal, March 2, 
68-72. 



316 JOHN MARSHALL 

more perfectly convinced that the floor was wood or 
that I stood on my feet and not on my head than 
that our instructions would not permit us to make 
the loan required." 1 Let Gerry or Marshall or both 
together return to America and get new instructions 
if a loan must be made. 

Two days later, another long and absurd discus- 
sion with Gerry occurs. Before the envoys go to see 
Talleyrand the next day, Gerry proposes to Mar- 
shall that, with reference to President Adams's 
speech, the envoys should declare, in any treaty 
made, "that the complaints of the two governments 
had been founded in mistake." Marshall hotly re- 
torts: "With my view of things, I should tell an 
absolute lye if I should say that our complaints were 
founded in mistake. He [Gerry] replied hastily and 
with warmth that he wished to God, I would pro- 
pose something which was accommodating: that I 
would propose nothing myself and objected to 
every thing which he proposed. I observed that it 
was not worth while to talk in that manner: that 
it was calculated to wound but not to do good : that 
I had proposed every thing which in my opinion 
was calculated to accommodate differences on just 
and reasonable grounds. He said that ... to talk 
about justice was saying nothing: that I should 
involve our country in a war and should bring it 
about in such a manner, as to divide the people 
among themselves. I felt a momentary irritation, 
which I afterwards regretted, and told Mr. Gerry 
that I was not accustomed to such language and did 
1 Marshall's Journal, March 3, 74. 



THE AMERICAN MEMORIAL 317 

not permit myself to use it with respect to him or his 
opinions." 

Nevertheless, Marshall, with characteristic pa- 
tience, once more begins to detail his reasons. Gerry 
interrupts — Marshall "might think of him [Gerry] 
as I [he] pleased." Marshall answers moderately. 
Gerry softens and "the conversation thus ended." * 

Immediately after the bout between Marshall and 
Gerry the envoys saw Talleyrand for a third time. 
Marshall was dominant at this interview, his per- 
sonality being, apparently, stronger even than his 
words. These were strong enough — they were, 
bluntly, that the envoys could not and would not 
accept Talleyrand's proposals. 

A week later Marshall's client, Beaumarchais, 
called on his American attorney with the alarming 
news that "the effects of all Americans in France 
were to be Sequestered." Pay the Government 
money and avoid this fell event, was Beaumarchais's 
advice; he would see Talleyrand and call again. 
"Mr. Beaumarchais called on me late last evening," 
chronicles Marshall. "He had just parted from the 
Minister. He informed me that he had been told 
confidentially . . . that the Directory were deter- 
mined to give passports to General Pinckney and 
myself but to retain Mr. Gerry." But Talleyrand 
would hold the order back for "a few days to give 
us time to make propositions conforming to the 
views of the Government," which "if not made 
Mr t Talleyrand would be compelled to execute the 
order." 

1 Marshall's Journal, March 6, 79-81. 



318 JOHN MARSHALL 

"I told him," writes Marshall, "that if the propo- 
sition . . . was a loan it was perfectly unnecessary to 
keep it [the order] up [back] a single day: that the 
subject had been considered for five months" and 
that the envoys would not change; "that for myself, 
if it were impossible to effect the objects of our mis- 
sion, I did not wish to stay another day in France 
and would as cheerfully depart the next day as at 
any other time." 1 

Beaumarchais argued and appealed. Of course, 
France's demand was not just — Talleyrand did not 
say it was; but "a compliance would be useful to our 
country [America]." "France," said Beaumarchais, 
"thought herself sufficiently powerful to give the 
law to the world and exacted from all around her 
money to enable her to finish successfully her war 
against England." 

Finally, Beaumarchais, finding Marshall flint, 
"hinted " that the envoys themselves should propose 
which one of them should remain in France, Gerry 
being the choice of Talleyrand. Marshall countered. 
If two were to return for instructions, the envoys 
would decide that for themselves. If France was 
to choose, Marshall would have nothing to do 
with it. 

"General Pinckney and myself and especially 
me," said Marshall, "were considered as being sold 
to the English." Beaumarchais admitted "that our 
positive refusal to comply with the demands of 
France was attributed principally to me who was 
considered as entirely English. ... I felt some little 

1 Marshall's Journal, 82-88; Am. St. Prs., For. Bel, ii, 187-88. 



THE AMERICAN MEMORIAL 319 

resentment and answered that the French Govern- 
ment thought no such thing; that neither the gov- 
ernment nor any man in France thought me English: 
but they knew I was not French : they knew I would 
not sacrifice my duty and the interest of my country 
to any nation on earth, and therefore I was not a 
proper man to stay, and was branded with the epi- 
thet of being English: that the government knew 
very well I loved my own country exclusively, and 
it was impossible to suppose any man who loved 
America, fool enough to wish to engage her in a war 
with France if that war was avoidable." 

Thus Marshall asserted his purely American atti- 
tude. It was a daring thing to do, considering the 
temper- of the times and the place where he then 
was. Even in America, at that period, any one who 
was exclusively American and, therefore, neutral, as 
between the European belligerents, was denounced 
as being British at heart. Only by favoring France 
could abuse be avoided. And to assert. Neutrality 
in the French Capital was, of course, even more 
dangerous than to take this American stand in the 
United States. 

But Beaumarchais persisted and proposed to take 
passage with his attorney to America; not on a pub- 
lic mission, of course (though he had hinted at wish- 
ing to "reconcile" the two governments), but merely 
"to testify," writes Marshall, "to the moderation of 
my conduct and to the solicitude I had uniformly 
expressed to prevent a rupture with France." 

Beaumarchais "hinted very plainly," continues 
Marshall, "at what he had before observed that 



320 JOHN MARSHALL 

means would be employed to irritate the people of 
the United States against me and that those means 
would be successful. I told him that I was much 
obliged to him but that I relied entirely on my con- 
duct itself for its justification and that I felt no sort 
of apprehension for consequences, as they regarded 
me personally; that in public life considerations of 
that sort never had and never would in any degree 
influence me. We parted with a request, on his part, 
that, whatever might arise, we would preserve the 
most perfect temper, and with my assuring him of 
my persuasion that our conduct would always mani- 
fest the firmness of men who were determined, and 
never the violence of passionate men." 

"I have been particular," concludes Marshall, "in 
stating this conversation, because I have no doubt of 
its having been held at the instance of the Minister 
[Talleyrand] and that it will be faithfully reported to 
him. I mentioned to-day to Mr. Gerry that the Gov- 
ernment wished to detain him and send away Gen- 
eral Pinckney and myself. He said he would not 
stay; but I find I shall not succeed in my efforts 
to procure a Serious demand of passports for Mr. 
Gerry and myself." 1 

During his efforts to keep Gerry from danger- 
ously compromising the American case, and while 
waiting for Talleyrand to reply to his memorial, 
Marshall again writes to Washington a letter giv- 
ing a survey of the war-riven and intricate Euro- 
pean situation. He tells Washington that, "before 
this reaches you it will be known universally in 

1 Marshall's Journal, March 13, 87-93. 



THE AMERICAN MEMORIAL 321 

America 1 that scarcely a hope remains of" honor- 
able adjustment of differences between France and 
America; that the envoys have not been and will not 
be "recognized" without "acceding to the demands 
of France ... for money — to be used in the 
prosecution of the present war"; that according to 
"reports," when the Directory makes certain that 
the envoys "will not add a loan to the mass of 
American property already in the hands of this 
[French] government, they will be ordered out of 
France and a nominal [formally declared] as well as 
actual war will be commenc'd against the United 
States." 2 

Marshall goes on to say that his "own opinion has 
always been that this depends on the state of war 
with England"; the French are absorbed in their 
expected attack on Great Britain; "and it is per- 
haps justly believed that on this issue is stak'd the 
independence of Europe and America." He informs 
Washington of "the immense preparations for an 
invasion" of England; the "numerous and veteran 
army lining the coast"; the current statement that 
if "50,000 men can be" landed "no force in Eng- 
land will be able to resist them"; the belief that "a 
formidable and organized party exists in Britain, 
ready, so soon as a landing shall be effected, to rise 
and demand a reform"; the supposition that Eng- 
land then "will be in . . . the situation of the bata- 

1 This would seem to indicate that Marshall knew that his famous 
dispatches were to be published. 

2 France was already making "actual war" upon America; the 
threat of formally declaring war, therefore, had no terror for Mar- 
shall. 



322 JOHN MARSHALL 

vian and cisalpine republics and that its wealth, its 
commerce, and its fleets will be at the disposition 
of this [French] government." 

But, he continues, "this expedition is not with- 
out its hazards. An army which, arriving safe, would 
sink England, may itself be . . . sunk in the channel. 
. . . The effect of such a disaster on a nation already 
tir'd of the war and groaning under . . . enormous 
taxation" and, intimates Marshall, none too warm 
toward the "existing arrangements . . . might be 
extremely serious to those who hold the reins of gov- 
ernment" in France. Many intelligent people there- 
fore think, he says, that the "formidable military 
preparations" for the invasion of England "cover 
and favor secret negotiations for peace." This view 
Marshall himself entertains. 

He then briefly informs Washington of Bona- 
parte's arrangement with Austria and Prussia which 
will "take from England, the hope of once more 
arming" those countries "in her favor," "influence 
the secret [French] negotiations with England," 
and greatly affect "Swisserland." Marshall then 
gives an extended account of the doings and pur- 
poses of the French in Switzerland, and refers to 
revolutionary activities in Sardinia, Naples, and 
Spain. 

But notwithstanding the obstacles in its way, he 
concludes that "the existing [French] government 
. . . needs only money to enable it to effect all its 
objects. A numerous brave and well disciplined 
army seems to be devoted to it. The most military 
and the most powerful nation on earth [the French] 



THE AMERICAN MEMORIAL 323 

is entirely at its disposal. 1 Spain, Italy, and Holland, 
with the Hanseatic towns, obey its mandates." 

But, says he, it is hard to "procure funds to 
work this vast machine. Credit being annihilated 
. . . the enormous contributions made by foreign na- 
tions," together with the revenue from imposts, are 
not enough to meet the expenses; and, therefore, 
"France is overwhelmed with taxes. The proprietor 
complains that his estate yields him nothing. Real 
property pays in taxes nearly a third of its produce 
and is greatly reduc'd in its price." 2 

While Marshall was thus engaged in studying 
French conditions and writing his long and careful 
report to Washington, Talleyrand was in no hurry 
to reply to the American memorial. Indeed, he did 
not answer until March 18, 1798, more than six 
weeks after receiving it. The French statement 
reached Marshall and Pinckney by Gerry's hands, 
two days after its date. "Mr. Gerry brought in, 
just before dinner, a letter from the Minister of 
exterior relations," writes Marshall, "purporting to 
be an answer to our long memorial criminating in 
strong terms our government and ourselves, and 
proposing that two of us should go home leaving 
for the negotiation the person most acceptable to 
France. The person is not named but no question 
is entertained that Mr. Gerry is alluded to. I read 
the letter and gave it again to Mr. Gerry." 3 

1 Here Marshall contradicts his own statement that the French 
Nation was tired of the war, groaning under taxation, and not 
"universally" satisfied with the Government. 

2 Marshall to Washington, Paris, March 8, 1798; Amer. Hist. Rev., 
Jan., 1897, ii, 303; also MS., Lib. Cong. 

3 Marshall's Journal, March 20, 93. 



324 JOHN MARSHALL 

The next day the three envoys together read Tal- 
leyrand's letter. Gerry protests that he had told the 
French Foreign Minister that he would not accept 
Talleyrand's proposal to stay, "That," sarcastically 
writes Marshall, "is probably the very reason why 
it was made." Talleyrand's clerk calls on Gerry the 
next morning, suggesting light and innocent duties 
if he would remain. No, theatrically exclaims Gerry, 
I "would sooner be thrown into the Seine." x But 
Gerry remained. 

It is impossible, without reading Talleyrand's 
answer in full, to get an idea of the weak shiftiness to 
which that remarkable man was driven in his reply 
to Marshall. It was, as Pinckney said, "weak in 
argument, but irritating and insulting in style." 2 
The great diplomat complains that the Americans 
have "claimed the right to take cognizance of the 
validity of prizes carried into the ports of the United 
States by French cruisers"; that the American Gov- 
ernment permitted "any vessels to put into the ports 
of the United States after having captured the prop- 
erty of ships belonging to French citizens"; that "a 
French corvette had anchored at Philadelphia and 
was seized by the Americans"; and that the Jay 
Treaty was hostile to France. 

But his chief complaint was with regard to the 
American newspapers which, said Talleyrand, "have 
since the treaty redoubled the invectives and calum- 
nies against the [French] republic, and against her 

1 Marshall's Journal, March 22, 95. 

2 Murray to J. Q. Adams, April 3, 1798, quoting Pinckney; Letters: 
Ford, 391. 



THE AMERICAN MEMORIAL 325 

principles, her magistrates, and her envoys"; 1 and 
of the fact that the American Government might 
have, but did not, repress "pamphlets openly paid 
for by the Minister of Great Britain" which con- 
tained "insults and calumnies." So far from the 
American Government stopping all this, snarls Tal- 
leyrand, it encouraged "this scandal in its public 
acts" and, through its President, had denounced 
the French Directory as endeavoring to propagate 
anarchy and division within the United States. 

Talleyrand then openly insults Marshall and 
Pinckney by stating that it was to prevent the res- 
toration of friendship that the American Govern- 
ment had sent "to the French republic persons 
whose opinions and connections are too well known 
to hope from them dispositions sincerely concilia- 
tory." Appealing directly to the French party in the 
United States, he declares that he "does not hesi- 
tate to believe that the American nation, like the 
French nation, sees this state of affairs with regret, 
and does not consider its consequences without 
sorrow. He apprehends that the American people 
will not commit a mistake concerning the preju- 
dices with which it has been desired to inspire them 
against an allied people, nor concerning the engage- 
ments which it seems to be wished to make them 
contract to the detriment of an alliance, which so 
powerfully contributed to place them in the rank 
of nations, and to support them in it; and that they 

1 The exact reverse was true. Up to this time American newspapers, 
with few exceptions, were hot for France. Only a very few papers, 
like Fenno's Gazette of the United States, could possibly be considered 
as unfriendly to France at this point. (See supra, chap. I.) 



326 JOHN MARSHALL 

will see in these new combinations the only dangers 
their prosperity and importance can incur." * 

Finally, with cynical effrontery, Talleyrand actu- 
ally proposes that Gerry alone shall conduct the 
negotiations. "Notwithstanding the kind of preju- 
dice which has been entertained with respect to 
them [the envoys], the Executive Directory is dis- 
posed to treat with that one of the three, whose 
opinions, presumed to be more impartial, promise, 
in the course of explanations, more of that recipro- 
cal confidence which is indispensable." 2 

Who should answer Talleyrand? Marshall, of 
course. ''It was agreed . . . that I should . . . pre- 
pare an answer ... in which I should state that no 
one of the ministers could consent to remain on a 
business committed to all three." 3 In the discussion 
leading to this decision, "I," writes Marshall, "was 
perfectly silent." Again Dutrimond, a clerk of Tal- 
leyrand's, calls on Gerry, but sees Marshall instead, 
Gerry being absent. 

Dutrimond's advice to Marshall is to leave France. 
The truth is, he declares, that his chief must order 
the envoys out of France " in three days at farthest." 
But spare them Gerry ; let him remain — all this in 
polite terms and with plausible argument. "I told 
him," relates Marshall, "that personally nothing 
could be more desirable to me than to return imme- 
diately to the United States." 

Then go on your own initiative, urges Talleyrand's 
clerk. Marshall grows evasive; for he wishes the 

1 Am. St. Prs., For. Rel., ii, 190-91. * lb. t 191. 

3 Marshall's Journal, March 22, 95. 



THE AMERICAN MEMORIAL 327 

Directory to order his departure. A long talk ensues. 
Dutrimond leaves and Gerry returns. Marshall re- 
lates what had passed. ' ' To prevent war I will stay,'* 
exclaims Gerry. "I made no observation on this,'* 
dryly observes Marshall in his Journal. 1 

Beaumarchais again tries his luck with Marshall, 
who replies that he will go home by "the direct pas- 
sage to America" if he can get safe-conduct, "tho' 
I had private business of very considerable conse- 
quence in England." 2 Otherwise, declares Marshall, 
"I should embark immediately for England." That 
would never do, exclaims Beaumarchais; it would en- 
rage the Directory and subject Marshall to attacks 
at home. Marshall remarks that he prefers to sail 
direct, although he knows " that the captains of pri- 
vateers had received orders to cruise for us . . . and 
take us to the West Indies." 3 

Beaumarchais sees Talleyrand and reports that 
the Foreign Minister is horrified at the thought of 
Marshall's returning by way of England; it would 
"irritate this government" and delay "an accommo- 
dation"; it would blast Marshall's reputation; the 
Directory "would immediately publish . . . that I 
was gone to England to receive the wages I had 
earned by breaking off the treaty with France," 
Marshall records of the representations made to 
him. 

"I am entitled to safe conduct," cries Marshall; 
and "the calumny threatened against myself is too 
contemptible to be credited for a moment by those 

1 Marshall's Journal, March 22, 95-97. 2 The Fairfax purchase. 
8 Marshall's Journal, March 23, 99. 



328 JOHN MARSHALL 

who would utter it." I "despise" it, exclaims the 
insulted Virginian. 1 Thus back and forth went this 
fantastic dance of corrupt diplomacy and cautious 
but defiant honesty. 

At the long last, the interminable Gerry finished 
his review of Marshall's reply to Talleyrand and 
made a lengthy and unctuous speech to his col- 
leagues on the righteousness of his own motives. 
Pinckney, intolerably bored and disgusted, told 
Gerry what he thought of him. The New Eng- 
lander peevishly charged Marshall and Pinckney 
with concealing their motives. 

"It is false, sir," shouted Pinckney. Gerry, he 
said, was the one who had concealed from his col- 
leagues, not only his purposes, but his clandestine 
appointments with Talleyrand. Pinckney rode 
Gerry hard, "and insisted in plain terms on the 
duplicity which had been practiced [by Gerry] upon 
us both." The latter ridiculously explained, evaded, 
and, in general, acted according to the expectation of 
those who warned Adams against his appointment. 
Finally, however, Marshall's reply was signed by all 
three and sent to Talleyrand. 2 

The calmness, dignity, and conclusiveness of 
Marshall's rejoinder can be appreciated only by 
reading the entire document. Marshall begins his 
final statement of the American case and refutation 
of the French claims by declaring what he had stated 
before, that the American envoys "are ready to con- 
sider and to compensate the injury, if the American 
Government has given just cause of complaint to 

1 Marshall's Journal, March 29, 99-100. 2 lb., April 3, 102-07. 



THE AMERICAN MEMORIAL 329 

that of France " ; and points out that the negotiations 
which the American envoys had sought fruitlessly 
for six months, if taken up even now, would "demon- 
strate the sincerity of this declaration." : This offer 
Marshall repeats again and again. 

Before taking up Talleyrand's complaints in de- 
tail, he states that if the envoys cannot convince 
Talleyrand that the American Government is not in 
the wrong on a single point Talleyrand mentions, the 
envoys will prove their good faith; and thus, with an 
offer to compensate France for any wrong, "a base 
for an accommodation" is established. Every griev- 
ance Talleyrand had made is then answered mi- 
nutely and at great length. History, reason, evi- 
dence, march through these pages like infantry, 
cavalry, and artillery going to battle. Marshall's 
paper was irresistible. Talleyrand never escaped 
from it. 

In the course of it there is a passage peculiarly ap- 
plicable to the present day. Answering Talleyrand's 
complaints about newspapers, Marshall says: — 

"The genius of the Constitution, and the opinions 
of the people of the United States, cannot be over- 
ruled by those who administer the Government. 
Among those principles deemed sacred in America, 
. . . there is no one . . . more deeply impressed on 
the public mind, than the liberty of the press. That 
this liberty is often carried to excess, that it has some- 
times degenerated into licentiousness, is seen and 
lamented; but the remedy has not been discovered. 
Perhaps it is an evil inseparable from the good with 
1 Am. St. Prs., For. Rel., ii, 191. 



330 JOHN MARSHALL 

which it is allied; perhaps it is a shoot which cannot 
be stripped from the stalk, without wounding vitally 
the plant from which it is torn." 

At any rate, declares Marshall, there is, in Amer- 
ica, no redress for "the calumnies and invectives" of 
the press except "legal prosecution in courts which 
are alike open to all who consider themselves as in- 
jured. Without doubt this abuse of a valuable priv- 
ilege is [a] matter of peculiar regret when it is ex- 
tended to the Government of a foreign nation." It 
never is so extended "with the approbation of the 
Government of the United States." But, he goes on 
to say, this is unavoidable "especially on points re- 
specting the rights and interests of America, ... in 
a nation where public measures are the results of 
public opinion." 

This practice of unrestricted criticism was not 
directed toward France alone, Marshall assures 
Talleyrand; "it has been lavished still more pro- 
fusely on its [France's] enemies and has even been 
bestowed, with an unsparing hand, on the Federal 
[American] Government itself. Nothing can be more 
notorious than the calumnies and invectives with 
which the wisest measures and most virtuous char- 
acters of the United States have been pursued and 
traduced [by American newspapers]." It is plain, 
therefore, that the American Government cannot 
influence the American press, the excesses of which 
are, declares Marshall, "a calamity incident to the 
nature of liberty." 

He reminds Talleyrand that "the same complaint 
might be urged on the part of the United States, 



THE- AMERICAN MEMORIAL 331 

You must well know what degrading and unworthy 
calumnies against their Government, its principles, 
and its officers, have been published to the world by 
French journalists and in French pamphlets." Yet 
America had not complained of "these calumnies, 
atrocious as they are. . . . Had not other causes, in- 
finitely more serious and weighty, interrupted the 
harmony of the two republics, it would still have 
remained unimpaired and the mission of the under- 
signed would never have been rendered necessary." 1 

Marshall again briefly sums up in broad outline 
the injuries which the then French Government had 
inflicted upon Americans and American property, 
and finally declares: "It requires no assurance to 
convince, that every real American must wish sin- 
cerely to extricate his country from the ills it suffers, 
and from the greater ills with which it is threatened; 
but all who love liberty must admit that it does not 
exist in a nation which cannot exercise the right of 
maintaining its neutrality." 

Referring to Talleyrand's desire that Gerry remain 
and conduct the negotiations, Marshall remarks that 
the request "is not accompanied by any assurances 
of receding from those demands of money heretofore 
made the consideration on which alone the cessation 
of hostility on American commerce could be ob- 
tained." No one of the three American envoys had 
power to act alone, he maintains. In spite of neg- 
lect and insult Marshall still hopes that negotiations 
may begin ; but if that is impossible, he asks for pass- 
ports and safe-conduct. 

1 Am. St. Prs., For. Rel, ii, 196. 



332 JOHN MARSHALL 

Marshall made his final preparations for sailing, 
in order, he says, "that I might be in readiness to 
depart so soon as the will of the government should 
be signified to me." He was so hurried, he declares, 
that "I could not even lay in a moderate stock of 
wine or send my foul linen to be washed." 1 The 
now inescapable Beaumarchais saw Marshall again 
and told him that Talleyrand said that "I [Mar- 
shall] was no foreign minister; that I was to be con- 
sidered as a private American citizen, to obtain my 
passport in the manner pursued by all others 
through the Consul ... I must give my name, 
stature, age, complexion, &c, to our Consul." 

Marshall answered with much heat. Beaumar- 
chais conferred with Talleyrand, taking Marshall's 
side. Talleyrand was obdurate and said that "he 
was mistaken in me [Marshall] ; that I prevented all 
negotiation and that so soon as I was gone the ne- 
gotiation would be carried on; that in America I 
belonged to the English faction, which universally 
hated and opposed the French faction; that all I 
sought for was to produce a rupture in such a man- 
ner as to throw the whole blame on France." Mar- 
shall replied that Talleyrand "endeavored to make 
our situation more unpleasant than his orders 
required, in order to gratify his personal feelings," 
and he flatly refused to leave until ordered to go. 2 

Finally Marshall and Pinckney received their 

1 This would seem to dispose of the story that Marshall brought 
home enough "very fine" Madeira to serve his own use, supply wed- 
dings, and still leave a quantity in existence three quarters of a cen- 
tury after his return. (Green Bag, viii, 486.) 

2 Marshall's Journal, April 10 and 11, 1798, 107-14. 



THE AMERICAN MEMORIAL 333 

passports. Pinckney, whose daughter was ill and 
could leave France at that time only at the risk of 
her life, had serious difficulty in getting permission 
to stay in the south of France. On April 24, Marshall 
sailed for home. It is characteristic of the man that, 
notwithstanding his humiliating experiences and the 
failure of the mission, he was neither sour nor de- 
pressed. He had made many personal friends in 
Paris; and on taking ship at Bordeaux he does not 
forget to send them greetings, singling out Madame 
de Villette for a gay message of farewell. "Present 
me to my friends in Paris," he writes the American 
Consul-General at the French Capital, "& have the 
goodness to say to Madam Vilette in my name & in 
the handsomest manner, every thing which respect- 
ful friendship can dictate. When you have done that 
You will have rendered not quite half justice to my 
sentiments." 1 

Gerry, to whom Pinckney and Marshall did not 
even bid farewell, 2 remained in Paris, "extremely 
miserable." 3 Infinitely disgusted, Pinckney writes 
King that Gerry, "as I suspected, is resolved to 
remain here," notwithstanding Pinckney's "warm 
remonstrances with him on the bad consequences 
. . . of such conduct and on the impropriety of" 
his secret "correspondence w T ith Talleyrand under 
injunction not to communicate it to his colleagues." 
Pinckney says: "I have made great sacrifices of my 
feelings to preserve union; but in vain. I never met 

1 Marshall to Skipwith, Bordeaux, April 21, 1798; MS., Pa. Hist. 
Soc. 

* Murray to J. Q. Adams, April 24, 1798; Letters: Ford, 399. 
8 Same to same, May 18, 1798; ib., 407. 



334 JOHN MARSHALL 

with a man of less candour and so much duplicity 
as Mr. Gerry. General Marshall is a man of ex- 
tensive ability, of manly candour, and an honest 
heart." * 

1 Pinckney to King, Paris, April 4, 1798, enclosed in a letter to 
Secretary of State, April 16, 1798; Pickering MSS., Mass, Hist. Soc. 



CHAPTER IX 

THE TRIUMPHANT RETURN 

The present crisis is the most awful since the days of Vandalism. (Robert 
Troup.) 

Millions for defense but not one cent for tribute. (Toast at banquet to 
Marshall.) 

We shall remain free if we do not deserve to be slaves. (Marshall to citizens 
of Richmond.) 

What a wicked use has been made of the X. Y. Z. dish cooked up by Mar- 
shall. (Jefferson.) 

While Talleyrand's drama of shame was enacting 
in Paris, things were going badly for the American 
Government at home. The French party in America, 
with w T hose wrath Talleyrand's male and female 
agents had threatened our envoys, was quite as pow- 
erful and aggressive against President Adams as the 
French Foreign Office had been told that it was. 1 

Notwithstanding the hazard and delay of ocean 
travel, 2 Talleyrand managed to communicate at 
least once with his sympathizers in America, whom 
he told that the envoys' ''pretensions are high, that 
possibly no arrangement may take place, but that 
there will be no declaration of war by France." 3 

Jefferson was alert for news from Paris. " We have 
still not a word from our Envoys. This long silence 
(if they have been silent) proves things are not go- 
ing on very roughly. If they have not been silent, 

1 See summary in McM aster, ii, 374. 

' Six copies of the dispatches of the American envoys to the Sec- 
retary of State were sent by as many ships, so that at least one of 
them might reach its destination. 

* Jefferson to Madison, Jan. 25, 1798; Works: Ford, viii, 259. 



336 JOHN MARSHALL 

it proves their information, if made public, would 
check the disposition to arm." l He had not yet re- 
ceived the letter written him March 17, by his agent, 
Skipwith. This letter is abusive of the Administra- 
tion of Washington as well as of that of Adams. 
Marshall was "one of the declaiming apostles of 
Jay's Treaty"; he and Pinckney courted the enemies 
of the Revolutionary Government; and Gerry's 
"paralytic mind" was "too weak" to accomplish 
anything. 2 

The envoys' first dispatches, sent from Paris Octo- 
ber 22, 1797, reached Philadelphia on the night of 
March 4, 1798. 3 These documents told of the cor- 
rupt French demands and machinations. The next 
morning President Adams informed Congress of 
their arrival. 4 Two weeks later came the President's 
startling message to Congress declaring that the 
envoys could not succeed "on terms compatible 
with the safety, the honor, or the essential interests 
of the nation" and "exhorting" Congress to prepare 
for war. 5 

The Republicans were dazed. White hot with 
anger, Jefferson writes Madison that the President's 
"insane message . . . has had great effect. Exulta- 
tion on the one side & a certainty of victory; while 

1 Jefferson to Madison, Feb. 15, 1798; Works: Ford, viii, 368. 

2 Skiowith to Jefferson, Paris, March 17, 1798; Gibbs, ii, 160. 

3 Am. St. Prs., For. Rel. y ii, 152, 157, 159, 161, 166. 

4 76. The President at this time communicated only the first dis- 
patch, which was not in cipher. It merely stated that there was no 
hope that the envoys would be received and that a new decree di- 
rected the capture of all neutral ships carrying any British goods 
whatever. (76., 157.) 

6 lb., 152; Richardson, i, 264; and Works: Adams, ix, 156. 



THE TRIUMPHANT RETURN 337 

the other [Republican] is petrified with astonish- 
ment." x The same day he tells Monroe that the 
President's "almost insane message" had alarmed 
the merchants and strengthened the Administration; 
but he did not despair, for the first move of the Re- 
publicans "will be a call for papers [the envoys' dis- 
patches]. 2 In Congress the battle raged furiously; 
"the question of war & peace depends now on 
a toss of cross & pile," 3 was Jefferson's nervous 
opinion. 

But the country itself still continued French in 
feeling; the Republicans were gaining headway even 
in Massachusetts and Connecticut; Jefferson ex- 
pected the fall elections to increase the Republican 
strength in the House; petitions against war meas- 
ures were pouring into Congress from every section; 
the Republican strategy was to gain time. Jefferson 
thought that "the present period, ... of two or 
three weeks, is the most eventful ever known since 
that of 1775." 4 

The Republicans, who controlled the House of 
Representatives, demanded that the dispatches be 
made public : they were sure that these papers would 
not justify Adams's grave message. If the President 
should refuse to send Congress the papers it would 
demonstrate, said the "Aurora," that he "suspects 
the popularity of his conduct if exposed to public 
view. ... If he thinks he has done right, why should 
he be afraid of letting his measures be known?" Let 

1 Jefferson to Madison, March 21, 1798; Works: Ford, viii, 386. 

2 Jefferson to Monroe, March 21, 1798; ib., 388-89. 
* Jefferson to Madison, March 29, 1798; ib., 392. 

4 Jefferson to Pendleton, April 2, 1798; ib., 394-97. 



338 JOHN MARSHALL 

the representatives of the people see " the whole of the 
papers ... a partial communication would be worse 
than none." 1 

Adams hesitated to reveal the contents of the dis- 
patches because of "a regard for the personal safety 
of the Commissioners and an apprehension of the 
effect of a disclosure upon our future diplomatic 
intercourse." 2 High Federalist business men, to 
whom an intimation of the contents of the dispatches 
had been given, urged their publication. "We wish 
much for the papers if they can with propriety be 
made public" was Mason's reply to Otis. "The 
Jacobins want them. And in the name of God let 
them be gratified; it is not the first time they have 
wished for the means of their destruction." 3 

Both Federalists who were advised and Republi- 
cans who were still in the dark now were gratified 
in their wish to see the incessantly discussed and 
mysterious message from the envoys. The effect 
on the partisan maneuvering was as radical and 
amusing as it is illuminative of partisan sincerity. 
When, on April 3, the President transmitted to 
Congress the dispatches thus far received, the Re- 
publicans instantly altered their tactics. The dis- 
patches did not show that the negotiations were at 
an end, said the "Aurora"; it was wrong, therefore, 
to publish them — such a course might mean war. 
Their publication was a Federalist trick to discredit 
the Republican Party; and anyway Talleyrand was 

1 Aurora, April 3, 1798. 

2 Otis to Mason, March 22, 1798; Morison, i, 90. 

8 Jonathan Mason to Otis, March 30, 1798; ib., 93. And see the 
valuable New England Federalist correspondence of the time in ib. 



THE TRIUMPHANT RETURN 339 

a monarchist, the friend of Hamilton and King. So 
raged and protested the Republican organ. 1 

Troup thus reports the change: The Republicans, 
he says, "were very clamorous for the publication 
[of the dispatches] until they became acquainted 
with the intelligence communicated. From that 
moment they opposed publication, and finally they 
carried a majority against the measure. The Senate 
finding this to be the case instantly directed publi- 
cation." 2 The President then transmitted to Con- 
gress the second dispatch which had been sent from 
Paris two weeks after the first. This contained Mar- 
shall's superb memorial to Talleyrand. It was an- 
other blow to Republican hopes. 

The dispatches told the whole story, simply yet 
with dramatic art. The names of Hottenguer, Bel- 
lamy, and Haute val were represented by the letters 
X, Y, and Z, 3 which at once gave to this picturesque 
episode the popular name that history has adopted. 
The effect upon public opinion was instantaneous 
and terrific. 4 The first result, of course, was felt in 
Congress. Vice-President Jefferson now thought it 
his " duty to be silent." 5 In the House the Republi- 

1 Aurora, April 7, 1798. A week later, under the caption, "The 
Catastrophe," the Aurora began the publication of a series of ably 
written articles excusing the conduct of the French officials and con- 
demning that of Marshall and Pinckney. 

2 Troup to King, June 3, 1798; King, ii, 329. Ten thousand copiea 
of the dispatches were ordered printed and distributed at public ex- 
pense. Eighteen hundred were sent to Virginia alone. (Pickering to 
Marshall, July 24, 1798; Pickering MSS., Mass. Hist. Soc.) This was 
the beginning of the printing and distributing of public documents 
by the National Government. (Hildreth, ii, 217.) 

3 Pickering's statement, April 3, 1798; Am. St. Prs., ii, 157. 

1 Jefferson to Madison, April 5, 1798; Works: Ford, viii, 398. 6 lb. 



340 JOHN MARSHALL 

cans were "thunderstruck." 1 Many of their bold- 
est leaders left for home; others went over openly to 
the Federalists. 2 Marshall's disclosures "produced 
such a shock on the republican mind, as has never 
been seen since our independence," declared Jeffer- 
son. 3 He implored Madison to write for the public 
an analysis of the dispatches from the Republican 
point of view. 4 

After recovering from his "shock" Jefferson tried 
to make light of the revelations; the envoys had 
"been assailed by swindlers," he said, "but that the 
Directory knew anything of it is neither proved nor 
probable." Adams was to blame for the unhappy 
outcome of the mission, declared Jefferson; his 
"speech is in truth the only obstacle to negotia- 
tion." 6 Promptly taking his cue from his master, 
Madison asserted that the publication of the dis- 
patches served "more to inflame than to inform the 
country." He did not think Talleyrand guilty — his 
"conduct is scarcely credible. I do not allude to its 
depravity, which, however heinous, is not without 
example. Its unparalleled stupidity is what fills me 
with astonishment." 6 

The hot-blooded Washington exploded with anger. 
He thought "the measure of infamy was filled" by 
the "profligacy . . . and corruption" of the French 

1 Pickering to Jay, April 9, 1798; Jay: Johnston, iv, 236. 

2 Jefferson to Madison, April 26, 1798; Works: Ford, viii, 411. 
Among the Republicans who deserted their posts Jefferson names 
Giles, Nicholas, and Clopton. 

3 Jefferson to Madison, April 6, 1798; ib., 403. 

4 lb., April 12, 1798; ib., 404. 

6 Jefferson to Carr, April 12, 1798; Works: Ford, viii, 405-06. 
6 Madison to Jefferson, April 15, 1798; Writings: Hunt, vi, 315. 



THE TRIUMPHANT RETURN 341 

Directory; the dispatches ought "to open the eyes 
of the blindest," but would not "change . . . the 
leaders of the opposition unless there shou'd appear 
a manifest desertion of the followers." x Washington 
believed the French Government "capable [of] any 
thing bad" and denounced its "outrageous conduct 
. . . toward the United States"; but he was even 
more wrathful at the "inimitable conduct of its 
partisans [in America] who aid and abet their meas- 
ures." He concluded that the Directory would 
modify their defiant attitude when they found "the 
spirit and policy of this country rising with resis- 
tance and that they have falsely calculated upon 
support from a large part of the people thereof." 2 

Then was heard the voice of the country. "The 
effects of the publication [of the dispatches] ... on 
the people . . . has been prodigious. . . . The lead- 
ers of the opposition . . . were astonished & con- 
founded at the profligacy of their beloved friends 
the French." 3 In New England, relates Ames, "the 
Jacobins [Republicans] were confounded, and the 
trimmers dropt off from the party, like windfalls 
from an apple tree in September." 4 Among all classes 
were observed "the most magical effects"; so "irre- 
sistible has been the current of public opinion . . . 
that ... it has broken down the opposition in Con- 
gress." 6 Jefferson mournfully informed Madison 
that "the spirit kindled up in the towns is wonder- 

1 Washington to Pickering, April 16, 1798; Writings: Ford, xiii, 495. 

2 Washington to Hamilton, May 27, 1798, ib., xiv, 6-7. 
a Sedgwick to King, May 1, 1798; King, ii, 319. 

* Ames to Gore, Dec. 18, 1798; Works: Ames, i, 245-46. 
6 Troup to King, June 3, 1798; King, ii, 329. 



342 JOHN MARSHALL 

fell. . . . Addresses . . . are pouring in offering life & 
fortune." x Long afterwards he records that the 
French disclosures "carried over from us a great 
body of the people, real republicans & honest men, 
under virtuous motives." 2 In New England, espe- 
cially, the cry was for "open and deadly war with 
France." 3 From Boston Jonathan Mason wrote 
Otis that "war for a time we must have and our 
fears . . . are that . . . you [Congress] will rise with- 
out a proper climax. . . . We pray that decisive 
orders may be given and that accursed Treaty [with 
France] may be annulled. . . . The time is now 
passed, when we should fear giving offense. . . . The 
yeomanry are not only united but spirited." 4 

Public meetings were held everywhere and "ad- 
dresses from all bodies and descriptions of men" 
poured "like a torrent on the President and both 
Houses of Congress." 5 The blood of Federalism was 
boiling. " We consider the present crisis as the most 
awful since the days of Vandalism," declared the 
ardent Troup. 6 "Yankee Doodle," "Stony Point," 
"The President's March," supplanted in popular 
favor "£a ira" and the "Marseillaise," which had 
been the songs Americans best loved to singe 

1 Jefferson to Madison, May 3, 1797, Works: Ford, viii, 413. 

2 Jefferson to Monroe, March 7, 1801; ?'&., ix, 203. 

3 Higginson to Pickering, June 26, 1798; Pickering MSS., Mass. 
Hist. Soc. 

4 Jonathan Mason to Otis, May 28, 1798; Morison, i, 95-96. 
6 Troup to King, June 3, 1798; King, ii, 329. 

6 lb., 330; and see letters of Bingham, Lawrence, and Cabot to 
King, ib., 331-34. From the newspapers of the time, McMaster has 
drawn a brilliant picture of the thrilling and dramatic scenes which 
all over the United States marked the change in the temper of the 
people. (McMaster, ii, 376 et seq.)^ 



THE TRIUMPHANT RETURN 343 

The black cockade, worn by patriots during the 
Revolutionary War, suddenly took the place of the 
French cockade which until the X. Y. Z. disclosures 
had decorated the hats of the majority in American 
cities. The outburst of patriotism produced many 
songs, among others Joseph Hopkinson's "Hail 
Columbia!" ("The President's March"), which, 
from its first presentation in Philadelphia, caught 
the popular ear. This song is of historic importance, 
in that it expresses lyrically the first distinctively 
National consciousness that had appeared among 
Americans. Everywhere its stirring words were 
sung. In cities and towns the young men formed 
American clubs after the fashion of the democratic 
societies of the French party. 

"Hail, Columbia! happy land! 
Hail, ye heroes! heaven-born band! 

Who fought and bled in Freedom's cause," — 

sang these young patriots, and "Hail, Columbia!" 
chanted the young women of the land. 1 On every 
hilltop the fires of patriotism were signaling devotion 
and loyalty to the American Government. 

Then came Marshall. Unannounced and un- 
looked for, his ship, the Alexander Hamilton, had 
sailed into New York Harbor after a voyage of fifty - 
three days from Bordeaux. 2 No one knew of his 
coming. "General Marshall arrived here on Sunday 
last. His arrival was unexpected and his stay with us 
was very short. I have no other apology to make," 

1 "Hail Columbia exacts not less reverence in America than the 
Marseillaise Hymn in France and Rule Britannia in England." 
(Davis, 128.) 

a Norfolk (Va.) Herald, June 25, 1798. 



344 JOHN MARSHALL 

writes Troup, "for our not giving him a public 
demonstration of our love and esteem." 1 Marshall 
hurried on to Philadelphia. Already the great 
memorial to Talleyrand and the brilliantly written 
dispatches were ascribed to his pen, and the belief 
had become universal that the Virginian had proved 
to be the strong and resourceful man of the mission. 

On June 18, 1798, he entered the Capital, through 
which, twenty years before, almost to a day, he had 
marched as a patriot soldier on the way to Mon- 
mouth from Valley Forge. Never before had any 
American, excepting only Washington, been re- 
ceived with such demonstration. 2 Fleets of carriages 
filled with members of Congress and prominent citi- 
zens, and crowds of people on horseback and on 
foot, went forth to meet him. 

"The concourse of citizens . . . was immense." 
Three corps of cavalry "in full uniform" gave a 
warlike color to the procession which formed behind 
Marshall's carriage six miles out from Philadelphia. 
"The occasion cannot be mentioned on which so 
prompt and general a muster of the cavalry ever be- 
fore took place." When the city was reached, the 
church bells rang, cannon thundered, and amid 
"the shouts of the exulting multitudes" Marshall 
was "escorted through the principal streets to the 
city Tavern." The leading Federalist newspaper, 
the s ' Gazette of the United States," records that, 
"even in the Northern Liberties, 3 where the demons 

1 Troup to King, June 23, 1798; King, ii, 349. 

2 Even Franklin's welcome on his first return from diplomatic 
service in England did not equal the Marshall demonstration. 

3 A strenuously Republican environ of Philadelphia. 



THE TRIUMPHANT RETURN 345 

of anarchy and confusion are attempting to organ- 
ize treason and death, repeated shouts of applause 
were given as the cavalcade approached and passed 
along." x The next morning O'Ellers Tavern was 
thronged with Senators and Representatives and 
"a numerous concourse of respectable citizens" who 
came to congratulate Marshall. 2 

The "Aurora" confirms this description of its 
Federalist rival; but adds bitterly: "What an oc- 
casion for rejoicing! Mr. Marshall was sent to 
France for the ostensible purpose, at least, of effect- 
ing an amicable accommodation of differences. He 
returns without having accomplished that object, 
and on his return the Tories rejoice. This certainly 
looks as if they did not wish him to succeed. . . . 
Many pensive and melancholy countenances gave 
the glare of parade a gloom much more suited to the 
occasion, and more in unison with the feelings of 
Americans. Well may they despond: For tho' the 
patriotic Gerry may succeed in settling the differ- 
ences between the two countries — it is too certain 
that his efforts can be of no avail when the late con- 
duct of our administration, and the unprecedented 
intemperance of our chief executive magistrate is 
known in Europe." 3 

Jefferson watched Marshall's home-coming with 
keen anxiety. "We heard of the arrival of Marshall 
at New York," he writes, "and I concluded to stay 
& see whether that circumstance would produce any 

1 Gazette of the United States, June 20, 1798, see also Claypoole's 
American Daily Advertiser, Wednesday, June 20, 1798. 

2 Gazette of the United States, June 21, 1798. 

8 Aurora, June 21, 1798; and see ib., June 20. 



346 JOHN MARSHALL 

new projects. No doubt he there received more than 
hints from Hamilton as to the tone required to be 
assumed. ... Yet I apprehend he is not hot enough 
for his friends." 

With much chagrin he then describes what hap- 
pened when Marshall reached Philadelphia: "M. 
was received here with the utmost eclat. The Secre- 
tary of State & many carriages, with all the city 
cavalry, went to Frankfort to meet him , and on his 
arrival here in the evening, the bells rung till late 
in the night, & immense crowds were collected to 
see & make part of the shew, which was circuitously 
paraded through the streets before he was set down 
at the city tavern." But, says Jefferson, "all this 
was to secure him [Marshall] to their [the Admin- 
istration's] views, that he might say nothing which 
would expose the game they have been playing. 1 
Since his arrival I can hear nothing directly from 
him." 

Swallowing his dislike for the moment, Jefferson 
called on Marshall while the latter was absent from 
the tavern. "Thomas Jefferson presents his compli- 
ments to General Marshall" ran the card he left. 
"He had the honor of calling at his lodgings twice 
this morning, but was so u A n lucky as to find that he 
was out on both occasions. He wished to have 
expressed in person his regret that a pre-engagement 
for to-day which could not be dispensed with, 
would prevent him the satisfaction of dining in 
company with General Marshall, and therefore begs 
leave to place here the expressions of that respect 
1 Jefferson to Madison, June 21, 1798; Works: Ford, viii, 439-40. 



THE TRIUMPHANT RETURN 3-47 

which in company with his fellow citizens he bears 
him." l 

Many years afterwards Marshall referred to the 
adding of the syllable "un" to the word "lucky" 
as one time, at least, when Jefferson came near tell- 
ing the truth. 2 To this note Marshall returned a 
reply as frigidly polite as Jefferson's: — 

"J. Marshall begs leave to accompany his respect- 
ful compliments to Mr. Jefferson with assurances of 
the regret he feels at being absent when Mr. Jeffer- 
son did him the honor to call on him. 

"J. Marshall is extremely sensible to the obliging 
expressions contained in Mr. Jefferson's polite billet 
of yesterday. He sets out to-morrow for Winchester 
& would with pleasure charge himself with any com- 
mands of Mr. Jefferson to that part of Virginia." 3 

Having made his report to the President and 
Secretary of State, Marshall prepared to start for 
Virginia. But he was not to leave without the high- 
est compliment that the Administration could, at 
that time, pay him. So gratified were the President, 
Cabinet, and Federalist leaders in Congress with 
Marshall's conduct in the X. Y. Z. mission, and so 
high their opinion of his ability, that Adams ten- 
dered him the appointment to the place on the Su- 
preme Bench, 4 made vacant by the death of Justice 
Wilson. Marshall promptly declined. After applying 
to the Fairfax indebtedness all the money which he 

1 General Marshall at O'Eller's Hotel, June 23, 1798; Jefferson 
MSS., Lib. Cong. 

2 Green Bag, viii, 482-83. 

1 Marshall to Jefferson; Jefferson MSS., Lib. Cong. 
* Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. 
Hist. Soc. 



348 JOHN MARSHALL 

might receive as compensation for his services in the 
French mission, there would still remain a heavy- 
balance of obligation; and Marshall must devote all 
his time and strength to business. 

On the night before his departure, the members 
of Congress gave the hero of the hour the historic 
dinner at the city's principal tavern, "as an evi- 
dence of their affection for his person and their 
gratified approbation of the patriotic firmness with 
which he sustained the dignity of his country during 
his important mission." One hundred and twenty 
enthusiastic men sat at the banquet table. 

The Speaker of the National House, the members 
of the Cabinet, the Justices of the Supreme Court, 
the Speaker of the Pennsylvania State Senate, the 
field officers of the army, the Right Reverend Bish- 
ops Carroll and White, "and other distinguished 
public characters attended." Toasts "were drank 
with unbounded plaudits" and "many of them were 
encored with enthusiasm." High rose the spirit of 
Federalism at O'Eller's Tavern in Philadelphia that 
night; loud rang Federalist cheers; copiously flowed 
Federalist wine. 

" Millions for Defense but not a cent for Tribute ! " 
was the crowning toast of that jubilant evening. 
It expressed the spirit of the gathering; out over 
the streets of Philadelphia rolled the huzzas that 
greeted it. But its unknown author 1 "builded bet- 

1 This sentiment has been ascribed to General C. C. Pinckney, 
Marshall's colleague on the X. Y. Z. mission. But it was first used at 
the Philadelphia banquet to Marshall. Pinckney's nearest approach to 
it was his loud, and wrathful, " No! not a sixpence! " when Hottenguer 
made one of his incessant demands for money. (See supra, 273.) 



THE TRIUMPHANT RETURN 349 

ter than he knew." He did more than flatter Mar- 
shall and bring the enthusiastic banqueters, wildly 
shouting, to their feet: he uttered the sentiment of 
the Nation. "Millions for Defense but not a cent 
for Tribute" is one of the few historic expressions 
in which Federalism spoke in the voice of America. 
Thus the Marshall banquet in Philadelphia, June 
18, 1798, produced that slogan of defiant patriotism 
which is one of the slowly accumulating American 
maxims that have lived. 

After Marshall retired from the banquet hall, the 
assemblage drank a final toast to "The man whom 
his country delights to Honor." l 

1 Claypoole's American Daily Advertiser, Wednesday, June 20, 1798; 
Pa. Hist. Soc. The toasts drank at this dinner to Marshall illustrate 
the popular spirit at that particular moment. They also furnish good 
examples of the vocabulary of Federalism at the period of its revival 
and only two years before its annihilation by Jefferson's new party: — 
" 1. The United States — 'free, sovereign & independent.' 
" 2. The people and the Government — 'one and indivisible.' 
" 3. The President — ' some other hand must be found to sign the 

ignominious deed ' that would surrender the sovereignty of his 

Country. 
" 4. General Washington — ' His name a rampart & the Knowledge 

that he lives a bulwark against mean and secret enemies of his 

Country's Peace.' 
" 5. General Pinckney. ' 'T is not in mortals to command success: 

He has done more — deserved it.' 
** 6. The Officers & Soldiers of the American Army. ' May glory 

be their Theme, Victory their Companion, & Gratitude & Love 

their Rewards.' 
" 7. The Navy of the United States. ' May its infant efforts, like 

those of Hercules, be the Presage of its future Greatness.' 
" 8. The Militia. ' May they never cease to combine the Valor of 

the Soldier with the Virtues of the Citizen.' 
" 9. The Gallant Youth of America. ' May they disdain to hold as 

Tenants at Will, the Independence inherited from their ances- 
tors.' 
" 10. The Heroes who fell in the Revolutionary War. ' May their 

memory never be dishonored by a surrender of the Freedom 

purchased with their Blood.' 



350 JOHN MARSHALL 

Marshall was smothered with addresses, congratu- 
lations, and every variety of attention from public 
bodies and civic and military organizations. A com- 
mittee from the Grand Jury of Gloucester County, 
New Jersey, presented the returned envoy a lauda- 
tory address. His answer, while dignified, was some- 
what stilted, perhaps a trifle pompous. The Grand 
Jury compliment was, said Marshall, "a sweet re- 
ward" for his "exertions." The envoys wished, 
above all things, for peace, but felt "that not even 
peace was to be purchased at the price of national 
independence." 1 

The officers of a militia brigade delivered to Mar- 
shall a eulogy in which the war note was clear and 
dominant. Marshall answered that, desirable as 
peace is, it "ought not to have been bought by dis- 
honor and national degradation"; and that the re- 
sort to the sword, for which the militia officers de- 
clared themselves ready, made Marshall "feel with 
an elevated pride the dignity and grandeur of the 
American character." 2 

"11. The American Eagle. ' May it regard with disdain the crowing 

of the Gallic cock.' 
"12. Union & Valour — infallible Antidotes against diplomatic skill. 
" 13. Millions for Defense but not a cent for Tribute. 
" 14. The first duties of a good citizen — Reverence for the Laws and 

Respect for the Magistracy. 
" 15. Agriculture & Commerce — A Dissolution of whose partnership 

will be the Bankruptcy of both. 
"16. The Constitution — 'Esto Perpetua.' 

"After General Marshall Retired: — 

" General Marshall — The man whom his country delights to 
Honor." (Ih., June 25, 1798.) 
1 Claypoole's American Daily Advertiser, Monday, June 25, 1798; 
and Gazette of the United States, Saturday, June 23, 1798. 
* lb., June 25, 1798; and June 23, 1798. 



THE TRIUMPHANT RETURN 351 

The day before Marshall's departure from Phila- 
delphia the President, addressing Congress, said: 
"I congratulate you on the arrival of General Mar- 
shall ... at a place of safety where he is justly held 
in honor. . . . The negotiation may be considered at 
an end. / will never send another Minister to France 
without assurances that he will be received, respected, 
and honored as the representative of a great, free, pow- 
erful, and independent nation.'' 1 Bold and defiant 
words expressive of the popular sentiment of the 
hour; but words which were to be recalled later by 
the enemies of Adams, to his embarrassment and 
to the injury of his party. 2 

"Having heard that Mrs. Marshall is in Win- 
chester I shall immediately set out for that place," 3 
Marshall writes Washington. His departure from 
the Capital was as spectacular as his arrival. He 
"was escorted by detachments of cavalry," says 
the "Aurora." "Certainly nothing less was due 
considering the distinguished services which he has 
rendered by his mission — he has acquired some 
knowledge of the French language," 4 sneers that 
partisan newspaper in good Republican fashion. 
When Marshall approached Lancaster he was met 
by companies of "cavalry and uniformed militia" 
which escorted him into the town, where he was 
"welcomed by the discharges of artillery and the 
ringing of bells." 5 

1 Adams to Congress, June 21, 1798; Works: Adams, ix, 158; and 
Richardson, i, 266. Italics are mine. 

2 Infra, chap. xn. 

3 Marshall to Washington, June 22, 1798; MS., Lib. Cong. 

4 Aurora, June 30, 1798. 

1 Gazette of the United States, June 28, 1797. 



352 JOHN MARSHALL 

His journey throughout Pennsylvania and Vir- 
ginia, repeating scenes of his welcome at Philadelphia 
and Lancaster, ended at Richmond. There, among 
his old neighbors and friends, the demonstrations 
reached their climax. A long procession of citizens 
went out to meet him. Again rang the cheers, again 
the bells pealed, again the cannon thundered. And 
here, to his townsmen and friends, Marshall, for 
the first time, publicly opened his heart and told, 
with emotion, what had befallen in France. In this 
brief speech the Nationalist and fighting spirit, 
which appears in all his utterances throughout his 
entire life, flashes like a sword in battle. 

Marshall cannot express his "emotions of joy" 
which his return to Richmond has aroused; nor 
"paint the sentiments of affection and gratitude 
towards" his old neighbors. Nobody, he assures his 
hearers, could appreciate his feelings who had not 
undergone similar experiences. 

The envoys, far from their country with no news 
from their Government, were in constant anxiety, 
says Marshall. He tells of their trials, of how they 
had discharged their duty, of his exultation over the 
spirit America was now displaying. "I rejoice that 
I was not mistaken in the opinion I had formed of 
my countrymen. I rejoice to find, though they know 
how to estimate, and therefore seek to avoid the 
horrors and dangers of war, yet they know also how 
to value the blessings of liberty and national inde- 
pendence. Peace would be purchased at too high a 
price by bending beneath a foreign yoke" and such 
a peace would be but brief; for "the nation thus 



THE TRIUMPHANT RETURN 353 

submitting would be soon involved in the quarrels 
of its master. . . . We shall remain free if we do 
not deserve to be slaves." 

Marshall compares the governments of France and 
America. To one who, like himself, is so accustomed 
to real liberty that he "almost considers it as the 
indispensable companion of man, a view of [French] 
despotism," though "borrowing the garb usurping 
the name of freedom," teaches "the solid safety 
and real security" existing in America. The loss of 
these " would poison . . . every other joy." Without 
them "freemen would turn with loathing and dis- 
gust from every other comfort of life." To preserve 
them, "all . . . difficulties ought to be encountered." 

Stand by "the government of your choice," urges 
Marshall; its officials are from the people, "subject 
in common with others to the laws they make," and 
must soon return to the popular body "whose des- 
tiny involves their own and in whose ruin they must 
participate." This is always a good rule, but "it is 
peculiarly so in a moment of peril like the present" 
when "want of confidence in our government . . . fur- 
nishes ... a foreign real enemy [France] those weapons 
which have so often been so successfully used." 1 

The Mayor, Recorder, Aldermen, and Common 
Council of Richmond presented Marshall with an 
address of extravagant praise. "If reason and argu- 
ment ... if integrity, candor, and the pure spirit 
of conciliation" had met like qualities in France, 
"smiling peace would have returned along with 
you." But if Marshall had not brought peace, he 

1 Columbian Centinel, Boston, Sept. 22, 1798. 



354 JOHN MARSHALL 

had warned America against a government "whose 
touch is death." Perhaps he had even preserved 
"our excellent constitution and . . . our well earned 
liberties." In answer Marshall said that he recipro- 
cated the "joy" of his "fellow citizens, neighbors, 
and ancient friends" upon his return; that they were 
right in thinking honorable peace with France was 
impossible; and warned them against "the countless 
dangers which lurk beneath foreign attachments." * 

Marshall had become a national hero. Known 
before this time, outside of his own State, chiefly to 
the eminent lawyers of America, his name now be- 
came a household word in the remotest log cabins of 
Kentucky and Tennessee, as well as in the residences 
of Boston and New York. "Saving General Wash- 
ington, I believe the President, Pinckney, and Mar- 
shall are the most popular characters now in our 
country," Troup reported to King in London. 2 

For the moment, only one small cloud appeared 
upon the horizon of Marshall's popularity; but a 
vicious flash blazed from it. Marshall went to Fred- 
ericksburg on business and attended the little thea- 
ter at that place. The band of the local artillery 
company furnished the music. A Philadelphia Fed- 
eralist, who happened to be present, ordered them 
to play "The President's March" ("Hail, Colum- 
bia!"). Instantly the audience was in an uproar. So 
violent did they become that "a considerable riot 
took place." Marshall was openly insulted. Nor did 
their hostility subside with Marshall's departure. 

1 Norfolk (Va.) Herald, Aug. 30, 1798. 

2 Troup to King, Nov. 16, 1798; King, ii, 465; and see same to 
same, July 10, 1798; ib., 363. 



THE TRIUMPHANT RETURN 355 

"The inhabitants of Fredericksburg waited," in 
anxious expectation, for an especially hated Fed- 
eralist Congressman, Harper of South Carolina, to 
pass through the town on his way home, with the 
intention of treating him even more roughly. 1 

With this ominous exception, the public demon- 
strations for Marshall were warmly favorable. His 
strength with the people was greater than ever. By 
the members of the Federal Party he was fairly idol- 
ized. This, the first formal party organization in our 
history, was, as we have seen, in sorry case even 
under Washington. The assaults of the Republicans, 
directed by Jefferson's genius for party management, 
had all but wrecked the Federalists. That great 
party general had out-maneuvered his adversaries at 
every 7 point and the President's party was already 
nearing the breakers. 

The conduct of the French mission and the pub- 
lication of Marshall's dispatches and letters to Tal- 
leyrand saved the situation for the moment. Those 
whom Jefferson's consummate skill had won over 
to the Republican Party returned by thousands to 
their former party allegiance. 2 

Congress acted with belated decision. Our treaty 
with France was abrogated; non-intercourse laws 
passed; a provisional army created; the Navy 
Department established; arsenals provided; the 
building of warships directed. For a season our Na- 
tional machinery was permitted to work with vigor 
and effectiveness. 

1 Carey's United States Recorder, Aug. 16, 1798. 

2 McMaster, ii, 380-85; Hildreth, v, 203 et seq. 



356 JOHN MARSHALL 

The voices that were wont to declaim the glories 
of French democracy were temporarily silent. The 
people, who but yesterday frantically cheered the 
"liberte, egalite, fraternite" of Robespierre and 
Danton, now howled with wrath at mention of re- 
publican France. The pulpit became a tribune of 
military appeal and ministers of the gospel preached 
sermons against American "Jacobins." 1 Federalist 
orators had their turn at assailing "despotism" with 
rhetoric and defending "liberty" with eloquence; 
but the French Government was now the interna- 
tional villain whom they attacked. 

"The struggle between Liberty and Despotism, 
Government and Anarchy, Religion and Atheism, 
has been gloriously decided. . . . France has been 
foiled, and America is free. The elastick veil of Gal- 
lick perfidy has been rent, . . . the severing blow 
has been struck." Our abrogation of the treaty with 
France was "the completion of our Liberties, the 
acme of our Independence . . . and . . . emanci- 
pated us from the oppressive friendship of an ambi- 
tious, malignant, treacherous ally." That act 
evidenced "our nation's manhood"; our Govern- 
ment was now "an Hercules, who, no longer amused 
with the coral and bells of 'liberty and equality' . . . 
no longer willing to trifle at the distaff of a 'Lady 
Negociator,' boldly invested himself in the toga 
virilis." 2 Such was the language of the public plat- 
form; and private expressions of most men were even 
less restrained. 

1 McMaster, ii, 380-85. 

2 " Oration of Robert Treat Paine to Young Men of Boston," 
July 17, 1799; in Works of Robert Treat Paine, ed. 1812, 301 et seq. 



THE TRIUMPHANT RETURN 357 

Denouncing "the Domineering Spirit and bound- 
less ambition of a nation whose Turpitude has set 
all objections, divine & human/at naught," x Wash- 
ington accepted the appointment as Commander-in- 
Chief of the newly raised army. "Huzza! Huzza! 
Huzza! How transporting the fact! The great, the 
good, the aged Washington has said 'I am ready 
again to go with my fellow citizens to the field of 
battle in defense of the Liberty & Independence 
of my Country,'" ran a newspaper announcement, 
typically voicing the popular heart. 2 

To Marshall's brother James, who had offered his 
services as an aide-de-camp, Washington wrote that 
the French " (although / conceive them capable of 
anything that is unjust or dishonorable) " will not 
"attempt a serious invasion of this country" when 
they learn of "the preparation which [we] are mak- 
ing to receive them." They have "made calcula- 
tions on false ground" in supposing that Americans 
would not "support Independence and the Govern- 
ment of their country at every hazard." Neverthe- 
less, "the highest possible obligation rests upon the 
country to be prepared for the event as the most 
effective means to avert the evil." 3 Military prepa- 
rations were active and conspicuous: On July 4, 
New York City "resembles a camp rather than a 
commercial port," testifies Troup. 4 

1 Washington to Murray, Aug. 10, 1798; Writings: Ford, xiv, 72. 

2 Norfolk (Va.) Herald, July 10, 1798. 

3 Washington to Jas. Marshall, July 18, 1798; MS., N.Y. Pub. Lib. 
And see Washington to Murray, Aug. 10, 1798; Writings: Ford, xiv, 
71. " I . . . hope that . . . when the Despots of France find how much 
they . . . have been deceived by their partisans among us, . . . that 
an appeal to arms . . . will be . . . unnecessary." (lb.) 

* Troup to King, July 10, 1798; King, ii, 362. 



358 JOHN MARSHALL 

The people for the moment believed, with Mar- 
shall and Washington, that we were on the brink 
of war; had they known what Jefferson knew, their 
apprehension would have been still keener. 'Report- 
ing from Paris, the French partisan Skipwith tells 
Jefferson that, from motives of "commercial advan- 
tage and aggrandisement " as well as of " vengeance," 
France will probably fall upon America. "Yes sir, 
the moment is come that I see the fortunes, nay, 
independence, of my country at hazard, and in the 
hands of the most gigantic nation on earth. . . . Al- 
ready, the language of planting new colonies upon 
the . . . Mississippi is the language of Frenchmen 
here." x Skipwith blames this predicament upon 
Adams's character, speech, and action and upon 
Marshall's and Pinckney's conduct in Paris; 2 and 
advises Jefferson that "war may be prevented, and 
our country saved" by "modifying or breaking" the 
Jay Treaty and lending money to France. 3 

Jefferson was frantic with disappointment and 
anger. Not only did he see the Republican Party, 
which he had built up with such patience and skill, 
going to pieces before his very eyes; but the prospect 
of his election to the Presidency as the successor of 
Adams, which until then appeared to be inviting, 
now jeopardized if not made hopeless. With his 
almost uncanny understanding of men, Jefferson laid 
all this to Marshall; and, from the moment of his 
fellow Virginian's arrival from France, this captain 
of the popular cause began that open and malignant 

1 Skipwith to Jefferson, March 17, 1798; Gibbs, ii, 158. 

2 Supra, chap. viii. 

3 Skipwith to Jefferson, March 17, 1798; Gibbs, ii, 158. 



THE TRIUMPHANT RETURN 359 

warfare upon Marshall which ended only with Jeffer- 
son's last breath. 

At once he set out to repair the havoc which Mar- 
shall's work had wrought in his party. This task was 
made the harder because of the very tactics which 
JeffersoE had employed to increase the Republican 
strength. For, until now, he had utilized so thor- 
oughly the deep and widespread French sentiment in 
America as his immediate party weapon, and made 
so emphatic the French issue as a policy of party 
tactics, that, in comparison, all other issues, except 
the central one of States' Rights, were secondary in 
the public mind at this particular time. 

The French propaganda had gone farther than Jef- 
ferson, perhaps, intended it to go. "They [the French] 
have been led to believe by their agents and Parti- 
sans amongst us" testifies Washington, "that we 
are a divided people, that the latter are opposed to 
their own Government." * At any rate, it is certain 
that a direct connection, between members of what 
the French politicians felt themselves justified in 
calling "the French party" in America and the ma- 
nipulators of French public opinion, existed and was 
made use of. This is shown by the effect in France of 
Jefferson's famous letter to Mazzei of April 24, 
1796. 2 It is proved by the amazing fact that Talley- 
rand's answer to the memorial of the envoys was 
published in the Jeffersonian organ, the "Aurora," 
before Adams had transmitted that document to 
Congress, if not indeed before the President himself 

1 Washington to Adams, July 4, 1798; Writings: Ford, xiv, 15-19. 
a See infra, chap. xn. 



360 JOHN MARSHALL 

had received from our envoys Talleyrand's reply to 
Marshall's statement of the American case. 1 

Jefferson took the only step possible to a party 
leader. He sought to minimize the effect of the dis- 
closures revealed in Marshall's dispatches. Writing 
to Peter Carr, April 12, 1798, Jefferson said: "You 
will perceive that they [the envoys] have been as- 
sailed by swindlers, whether with or without the 
participation of Talleyrand is not very apparent. . . . 
That the Directory knew anything of it is neither 
proved nor probable." 2 On June 8, 1798, Jefferson 
wrote to Archibald Stuart: "It seems fairly presum- 
able that the douceur of 50,000 Guineas mentioned in 
the former dispatches was merely from X. and Y. as 
not a word is ever said by Talleyrand to our envoys 
nor by them to him on the subject." 3 Thus Jeffer- 
son's political desperation caused him to deny facts 
which were of record, for the dispatches show, not 
only that Talleyrand had full knowledge of the dis- 
graceful transaction, but also that he originated and 
directed it. 

The efforts of the Republicans to sneer away the 
envoys' disclosures awakened Washington's bitter 
sarcasm. The Republicans were " thunder-stricken 
... on the publication of the dispatches from our 
envoys," writes he, "but the contents of these dis- 
patches are now resolved by them into harmless chit- 
chat — mere trifles — less than was or ought to have 
been expected from the misconduct of the Adminis- 

1 See Marshall (1st ed.), v, footnote to 743; Hildreth, v, 218: 
also McMaster, ii, 390. 

2 Jefferson to Carr, April 12, 1798; Works: Ford, viii, 405. 

3 Jefferson to Stuart, June 8, 1798; ib., 436. 



THE TRIUMPHANT RETURN 361 

t rat ion of this country, and that it is better to 
submit to such chastisement than to hazard greater 
evils by shewing futile resentment." l 

Jefferson made no headway, however, in his at- 
tempts to discredit the X. Y. Z. revelations. Had the 
Federalists stopped with establishing the Navy De- 
partment and providing for an army, with Washing- 
ton .it its head; had they been content to build ships 
and to take other proper measures for the National 
defense, Adams's Administration would have been 
saved, the Federalist Party kept alive for at least 
four years more, the Republican Party delayed in its 
recovery and Jefferson's election to the Presidency 
made impossible. Here again Fate worked, through 
the blindness of those whose day had passed, the 
doom of Federalism. The Federalists enacted the 
Alien and Sedition Laws and thus hastened their 
own downfall. 

Even after this legislation had given him a new, 
real, and irresistible "issue," Jefferson still assailed 
the conduct of Marshall and Pinckney; he was re- 
solved that not a single Republican vote should be 
lost. Months later he reviews the effect of the X. 
Y. Z. disclosures. When the envoys were appointed, 
he asserts, many "suspected . . . from what was 
understood of their [Marshall's and Pinckney 's] dis- 
positions," that the mission would not only fail, 
but "widen the breach and provoke our citizens to 
consent to a war with" France "& union with Eng- 
land." While the envoys were in Paris the Adminis- 

1 Washington to McHenry, May, 1798; Writings: Ford, xiii, foot- 
note to 495. 



362 JOHN MARSHALL 

tration's hostile attitude toward France alarmed 
the people; "meetings were held ... in opposition 
to war"; and the "example was spreading like a 
wildfire." 

Then "most critically for the government [Admin- 
istration]," says Jefferson, "the dispatches . . . pre- 
pared by . . . Marshall, with a view to their being- 
made public, dropped into their laps. It was truly 
a God-send to them & they made the most of it. 
Many thousands of copies were printed & dispersed 
gratis, at the public expense; & the zealots for war 
co-operated so heartily, that there were instances of 
single individuals who printed & dispersed 10. or 
12,000 copies at their own expense. The odiousness 
of the corruption supposed in those papers excited a 
general & high indignation among the people." 

Thus, declares Jefferson, the people, "unexperi- 
enced in such maneuvers," did not see that the whole 
affair was the work of "private swindlers" unauthor- 
ized by "the French government of whose partici- 
pation there was neither proof nor probability." So 
"the people . . . gave a loose [tongue] to" their 
anger and declared "their honest preference of war 
to dishonor. The fever was long & successfully kept 
up and . . . war measures as ardently crowded." * 

Jefferson's deep political sagacity did not under- 
estimate the revolution in the thought and feelings 
of the masses produced by the outcome of the 
French mission; and he understood, to a nicety, 
the gigantic task which must be performed to 
reassemble and solidify the shattered Republican 

1 Jefferson to Gerry, Jan. 26, 1799; Works: Ford, ix, 21-22. 



THE TRIUMPHANT RETURN 363 

ranks. For public sentiment was, for the time being, 
decidedly warlike. "We will pay tribute to no na- 
tion; . . . We shall water our soil with our blood . . . 
before we yield," 1 was Troup's accurate if bombas- 
tic statement of the popular feeling. 

When the first ship with American newspapers 
containing the X. Y. Z. dispatches reached London, 
they were at once "circulated throughout Europe," 2 
and "produced everywhere much sensation favor- 
able to the United States and hostile to France." 3 
The intimates of Talleyrand and the Directory were 
" disappointed and chagrined. . . . Nothing can ex- 
ceed the rage of the apostate Americans, who have 
so long misrepresented and disgraced their country 
at Paris." 4 From the first these self -expatriated 
Americans had flattered Gerry and sent swarms of 
letters to America about the good intentions of the 
Directory. 5 

American diplomatic representatives abroad were 
concerned over Gerry's whimsical character and 
conduct. "Gerry is yet in Paris! . . . I . . . fear . . . 
that man's more than infantine weakness. Of it 
you cannot have an idea, unless you had seen him 
here [The Hague] and at Paris. Erase all the two 
lines above; it is true, but it is cruel. If they get 
hold of him they will convert him into an innocent 
baby-engine against the government." 6 

1 Troup to King, July 10, 1798; King, ii, 363. 

2 King to Hamilton, London, July 14, 1798; ib., 365. 

3 Smith to Wolcott, Lisbon, Aug. 14, postscript Aug. 17, 1798; 
Gibbs, ii, 120. 

* King to Troup, July 31, 1798; King, ii, 377. 

5 King to Pickering, July 19, 1798; ib., 370. 

6 Murray to J. Q. Adams, June 8, 1787; Letters: Ford, 416. 



364 JOHN MARSHALL 

And now Gerry, with whom Talleyrand had been 
amusing himself and whose conceit had been fed 
by American partisans of France in Paris, found 
himself in sorry case. Talleyrand, with cynical au- 
dacity, in which one finds much grim humor, per- 
emptorily demands that Gerry tell him the names of 
the mysterious "X., Y., and Z." With comic self- 
abasement, the New Englander actually writes 
Talleyrand the names of the latter's own agents 
whom Gerry had met in Talleyrand's presence and 
who the French Minister personally had informed 
Gerry were dependable men. 

The Federalists made the most of Gerry's remain- 
ing in Paris. Marshall told them that Gerry had 
"suffered himself to be wheedled in Paris." 1 "I . . . 
rejoice that I voted against his appointment," 2 de- 
clared Sedgwick. Cabot denounced Gerry's "course" 
as "the most dangerous that cou'd have been 
taken." 3 Higginson asserted that "those of us who 
knew him [Gerry] regretted his appointment and 
expected mischief from it; but he has conducted 
himself worse than we had anticipated." 4 The 
American Minister to Great Britain, bitterly humil- 
iated, wrote to Hamilton that Gerry's "answer to 
Talleyrand's demands of the names of X, Y, and Z, 
place him in a more degraded light than I ever be- 
lieved it possible that he or any other American 
citizen could be exhibited." 5 And Thomas Pinckney 

1 Troup to King, July 10, 1798; King, ii, 363. 

2 Sedgwick to King, July 1, 1798; ib., 353. 

3 Cabot to King, July 2, 1798; ib., 353. 

4 Higginson to Wolcott, Sept. 11, 1798; Gibbs, ii, 107. 

6 King to Hamilton, London, July 14, 1798; King, ii, 365. 



THE TRIUMPHANT RETURN 365 

feared "that to want of [Gerry's] judgment . . . may 
be added qualities of a more criminal nature." x 

Such sentiments, testifies Pickering, were common 
to all "the public men whom I had heard speak of 
Mr. G."; Pinckney, Gerry's colleague, tells his 
brother that he "never met with a man so destitute of 
candour and so full of deceit as Mr. Gerry/' and that 
this < .pinion was shared by Marshall. 2 Troup wrote : 
" We have seen and read with the greatest contempt 
the correspondence between Talleyrand and Mr. 
Gerry relative to Messrs. X. Y. and Z. . . . I can 
say nothing honorable to [of] him [Gerry]. De 
mortuis nil nisi bonum is a maxim as applicable to 
him as if he was in his grave." 3 Washington gave 
his opinion with unwonted mildness: "Nothing can 
excuse his [Gerry's] secret negotiations ... I fear 
. . . that vanity which may have led him into the 
mistake — & consciousness of being duped by the 
Diplomatic skill of our good and magnanimous 
Allies are too powerful for a weak mind to over- 
come." 4 

Mar shall was on tenter-hooks for fear that Gerry 
would not leave France before the Directory got 
wind "of the present temper" of the American 
people, and would hint to Gerry "insidious prop- 
ositions . . . not witli real pacific views but for the 
purpose of dividing the people of this country and 

1 Thomas Pinckney to King, July 18, 1798; King, ii, 369. 

2 Pickering to King, Sept. 15, 1798, quoting Pinckney; ib., 414. 
Italics are Pinckney's. 

3 Troup to King, Oct. 2, 1798; ib., 432-33. 

4 Washington to Pickering, Oct. 26, 1798; Writings: Ford, xiv, 
121. 



366 JOHN MARSHALL 

separating them from their government." * The 
peppery Secretary of State grew more and more 
intolerant of Gerry. He tells Marshall that 
"Gerry's correspondence with Talleyrand about 
W. 2 X. Y. and Z: ... is the finishing stroke to his 
conduct in France, by which he has dishonoured 
and injured his country and sealed his own indelible 
disgrace." 3 

Marshall was disgusted with the Gerry-Talley- 
rand correspondence about the names of "X. Y. Z.," 
and wrote Pickering of Gerry's dinner to Talley- 
rand at which Hottenguer, Bellamy, and Hauteval 
were present and of their corrupt proposition to 
Gerry in Talleyrand's presence. 4 Pickering urged 
Marshall to write "a short history of the mis- 
sion of the envoys extraordinary," and asked per- 
mission to show Marshall's journal to President 
Adams. 5 

Marshall is "unwilling," he says, "that my hasty 
journal, which I had never even read over until I 
received it from you, should be shown to him. This 
unwillingness proceeds from a repugnance to give 
him the vexation which I am persuaded it would give 
him." Nevertheless, Adams did read Marshall's 
Journal, it appears; for Cabot believed that "the 
reading of Marshall's journal has compelled the 

1 Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. 
Hist. Soc. 

2 Beaumarchais. 

3 Pickering to Marshall, Sept. 4, 1798; Pickering MSS., Mass, 
Hist. Soc. 

4 Marshall to Secretary of State, Sept. 15, 1798; ib. 
1 Pickering to Marshall, Oct. 19, 1798; ib. 



THE TRIUMPHANT RETURN 367 

President] to . . . acquiesce in the unqualified con- 
demnation of Gerry." l 

On his return to America, Gerry writes a turgid 
letter defending himself and exculpating Talleyrand 
and the Directory. The Secretary of State sends 
Gerry's letter to Marshall, declaring that Gerry 
"ought to be impeached." 2 It "astonishes me," 
replies Marshall; and while he wishes to avoid alter- 
cation, he thinks "it is proper for me to notice this 
letter," and encloses a communication to Gerry, 
together with a "certificate," stating the facts of 
Gerry's now notorious dinner to Talleyrand. 3 

Marshall is especially anxious to avoid any per- 
sonal controversy at the particular moment; for, as 
will presently appear, he is again running for office. 
He tells Pickering that the Virginia Republicans 
are "perfectly prepared" to use Gerry in any way 
"which can be applied to their purposes"; and are 
ready "to receive him into their bosoms or to drop 
him entirely as he may be French or American." 
He is so exasperated, however, that he contem- 
plates publishing the whole truth about Gerry, but 
adds: "I have been restrained from doing so by 
my having as a punishment for some unknown sins, 
consented to be nam'd a candidate for the ensuing 
election to Congress." 4 

Finding himself so violently attacked in the press, 
Marshall says: "To protect myself from the vexation 
of these newspaper altercations ... I wish if it be 

1 Cabot to King, April 26, 1798; King, iii, 9. 

1 Pickering to Marshall, Nov. 5, 1798; Pickering MSS. 

8 Marshall to Pickering, Nov. 12, 1798; ib. 

* See next chapter. 



368 JOHN MARSHALL 

possible to avoid appearing in print myself." Also 
he makes the excuse that the courts are in session, 
and that "my absence has plac'd my business in 
such a situation as scarcely to leave a moment 
which I can command for other purposes." * 

A week later Marshall is very anxious as to what 
course Gerry intends to take, for, writes Mar- 
shall, publications to mollify public opinion toward 
France and to irritate it against England "and to 
diminish the repugnance to pay money to the 
French republic are appearing every day." 2 

The indefatigable Republican chieftain had been 
busily inspiring attacks upon the conduct of the 
mission and particularly upon Marshall. "You 
know what a wicked use has been made of the . . . 
X. Y. Z. dish cooked up by Marshall, where the 
swindlers are made to appear as the French govern- 
ment," wrote Jefferson to Pendleton. "Art and 
industry combined have certainly wrought out of 
this business a wonderful effect on the people." 
But "now that Gerry comes out clearing the French 
government of that turpitude, . . . the people will 
be disposed to suspect they have been duped." 

Because Marshall's dispatches "are too volumi- 
nous for them [the people] and beyond their reach" 
Jefferson begs Pendleton to write a pamphlet "re- 
capitulating the whole story . . . short, simple & 
levelled to every capacity." It must be "so concise 
as omitting nothing material, yet may be printed 

1 Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. Hist. 
Soc. 

2 Marshall to Pickering, Oct. 22, 1798; ib., Mass. Hist. Soc, xxiii, 
251. 



THE TRIUMPHANT RETURN 369 

in handbills." Jefferson proposes to "print & dis- 
perse 10. or 20,000 copies" 1 free of postage under 
the franks of Republican Congressmen. 

Pickering having referred scathingly to the Gerry- 
Talleyrand dinner, Gerry writes the President, to 
deny Marshall's account of that function. Marshall 
replies in a personal letter to Gerry, which, consid- 
ering Marshall's placid and unresentful nature, is a 
very whiplash of rebuke; it closes, however, with 
the hope that Gerry "will think justly of this sub- 
ject and will thereby save us both the pain of an 
altercation I do so wish to avoid." 2 

A few months later Marshall, while even more 
fixed than ever in his contempt for Gerry, is mel- 
lower in expressing it. "I am grieved rather than 
surprised at Mr. Gerry's letter," he writes. 3 So 
ended the only incident in Marshall's life where 
he ever wrote severely of any man. Although the 
unfriendliness between Jefferson and himself grew 
through the years into unrelenting hatred on both 
sides, Marshall did not express the intensity of 
his feeling. While his courage, physical and moral, 
was perfect, he had no stomach for verbal en- 
counters. He could fight to the death with arms 
or arguments; but personal warfare by tongue or 
pen was beyond or beneath him. Marshall simply 
could not scold or browbeat. He was incapable of 
participating in a brawl. 

Soon after reaching Richmond, the domestic 

1 Jefferson to Pendleton, Jan. 29, 1799; Works: Ford, ix, 27-28. 
1 Marshall to Pickering, November 12, 1798; Pickering MSS., 
Mass. Hist. Soc. 

3 Marshall to Secretary of State, Feb. 19, 1799; ib. 



370 JOHN MARSHALL 

Marshall again shines out sunnily in a letter to his 
wife at Winchester, over the Blue Ridge. He tells 
his "dearest Polly " that although a week has passed 
he has "scarcely had time to look into any business 
yet, there are so many persons calling every hour 
to see me. . . . The hot and disagreeable ride" to 
Richmond had been too much for him, but "if I 
could only learn that you were entirely restored 
I should be happy. Your Mama & friends are in 
good health & your Mama is as cheerful as usual 
except when some particular conversation discom- 
poses her. 

"Your sweet little Mary is one of the most fasci- 
nating little creatures I ever beheld. She has im- 
proved very much since I saw her & I cannot help 
agreeing that she is a substitute for her lovely sis- 
ter. She talks in a way not easily to be understood 
tho she comprehends very well everything that is 
said to her & is the most coquettish little prude & 
the most prudish little coquet I ever saw. I wish she 
was with you as I think she would entertain you 
more than all the rest of your children put together. 

"Poor little John 1 is cutting teeth & of course is 
sick. He appeared to know me as soon as he saw me. 
He would not come to me, but he kept his eyes fixed 
on me as on a person he had some imperfect recollec- 
tion of. I expect he has been taught to look at the 
picture & had some confused idea of a likeness. He 
is small & weakly but by no means an ugly child. 
If as I hope we have the happiness to raise him I 

1 Marshall's fourth child, born January 15, 1798, during Marshall s 
absence in France. 



THE TRIUMPHANT RETURN 371 

trust he will do as well as the rest. Poor little fellow, 
the present hot weather is hard on him cutting 
teeth, but great care is taken of him & I hope he will 
do well. 

"I hear nothing from you my dearest Polly but 
I will cherish the hope that you are getting better & 
will indulge myself with expecting the happiness of 
seeing you in October quite yourself. Remember my 
love to give me this pleasure you have only to take 
the cold bath, to use a great deal of exercise, to sleep 
tranquilly & to stay in cheerful company. I am sure 
you will do everything which can contribute to give 
you back to yourself & me. This hot weather must 
be very distressing to you — it is to everybody — 
but it will soon be colder. Let me know in time every- 
thing relative to your coming down. Farewell my 
dearest Polly. I am your ever affectionate 

" J. Marshall." » 

On taking up his private business, Marshall 
found himself hard-pressed for money. Payments 
for the Fairfax estate were overdue and he had no 
other resources with which to meet them but the 
money due him upon his French mission. "The 
disarrangement," he writes to the Secretary of 

1 Marshall to his wife, Richmond, Aug. 18, 1798; MS. Mrs. 
Marshall remained in Winchester, where her husband had hurried 
to see her after leaving Philadelphia. Her nervous malady had 
grown much worse during Marshall's absence. Mrs. Carrington had 
been "more than usual occupied with my poor sister Marshall . . . 
who fell into a deep melancholy. Her husband, who might by his 
usual tenderness (had he been here) have dissipated this frightful 
gloom, was long detained in France. . . . The malady increased." 
(Mrs. Carrington to Miss C[airnsJ, 1800; Carrington MSS ) 



372 JOHN MARSHALL 

State, "produc'd by my absence and the disper- 
sion of my family oblige me to make either sales 
which I do not wish or to delay payments of money 
which I ought not to delay, unless I can receive 
from the treasury. This state of things obliges me 
to apply to you and to ask whether you can furnish 
me either with an order from the Secretary of the 
Treasury on Colo. Carrington or with your request 
to him to advance money to me. The one or the 
other will be sufficient." 1 

Pickering writes Marshall that Carrington can 
safely advance him the needed cash. "I will lose no 
time to place the balance in your hands," 2 says 
Pickering, upon the receipt of Marshall's statement 
of his account with the Government. 

The total amount paid Marshall for his eleven 
months' absence upon the French mission was 
$19,963.97, 3 which, allowing five thousand dollars 
for his expenses — a generous estimate — was con- 
siderably more than three times as much as Mar- 
shall's annual income from his law practice. It 
was an immense sum, considering the compensa- 
tion of public officials at that period — not much 
less than the annual salaries of the President and his 
entire Cabinet; more than the total amount annu- 

1 Marshall to Pickering, August 11, 1798; Pickering MSS., Mass. 
Hist. Soc, xxiii, 33. 

2 Pickering to Marshall, Sept. 4, 1798; ib. 

s Archives, State Department. Thirty-five hundred dollars was 
placed at Marshall's disposal when he sailed for France, five hundred 
dollars in specie and the remainder by letter of credit on governments 
and European bankers. (Marshall to Secretary of State, July 10, 
1797; Pickering MSS. Also Archives, State Department.) He drew 
two thousand dollars more when he arrived at Philadelphia on his 
return (June 23; ib.), and $14,463.97 on Oct. 13 (ib.). 



THE TRIUMPHANT RETURN 373 

ally paid to the justices of the Supreme Court. Thus, 
for the time being, the Fairfax estate was saved. 

It was still necessary, however, if he, his brother, 
and brother-in-law, were to discharge the remaining 
payments, that Marshall should give himself to the 
business of making money — to work much harder 
than ever he had done before and than his natural 
inclinations prompted. Therefore, no more of un- 
remunerative public life for him — no more waste 
of time in the Legislature. There never could, 
of course, come another such "God-send," to use 
Marshall's phrase as reported by Jefferson, 1 as the 
French mission; and few public offices, National or 
State, yielded so much as he could make in the 
practice of his profession. Thus financial necessity 
and his own desire settled Marshall in the resolve, 
which he believed nothing ever could shake, to give 
the remainder of his days to his personal and pri- 
vate business. But Fate had her own plans for 
John Marshall and again overruled what he believed 
to be his fixed and unalterable purpose. 
1 The "Anas" ; Works: Ford, i, 355. 



CHAPTER X 

CANDIDATE FOR CONGRESS 

Of the three envoys, the conduct of General Marshall alone has been entirely 
satisfactory. (Adams.) 

In heart and sentiment, as well as by birth and interest, I am an American. 
We should make no political connection with any nation on earth. (Marshall 
to constituents.) 

Tell Marshall I love him because he felt and acted as a Republican and an 
American. (Patrick Henry.) 

In the congressional campaign of 1798-99, the 
Federalists of the Richmond District were without 
a strong candidate. The one they had put up lacked 
that personal popularity which then counted for as 
much in political contests as the issues involved. 
Upon Marshall's return from France and his en- 
thusiastic reception, ending with the Richmond 
demonstration, the Federalist managers pressed 
Marshall to take the place of the candidate then 
running, who, indeed, was anxious to withdraw in 
his favor. But the returned envoy refused, urged 
the Federalist then standing to continue his can- 
didacy, and pledged that he would do all in his 
power to secure his election. 

Finally Washington asked Marshall to come to 
see him. "I received an invitation from General 
Washington," writes Marshall in his account of this 
important event, "to accompany his nephew . . . 
on a visit to Mount Vernon." * 

1 Marshall to Paulding, April 4, 1835; Lippincotf s Magazine 
(1868), ii, 624-25. 



CANDIDATE FOR CONGRESS 375 

When Bushrod Washington wrote that Marshall 
accepted the invitation, the General was extremely 
gratified. "I learnt with much pleasure ... of 
General Marshall's intention to make me a visit," 
he writes his nephew. "I wish it of all things; and it 
is from the ardent desire I have to see him that I 
have not delayed a moment to express it. . . . The 
crisis is most important. . . . The temper of the 
people in this state ... is so violent and outrageous 
that I wish to converse with General Marshall and 
yourself on the elections which must soon come." 1 
Washington says that when his visitors arrive the 
matter of the fictitious Langhorne letter will also 
be taken up "and we will let General Marshall into 
the whole business and advise with him thereon." 2 

To Mount Vernon, therefore, Marshall and his 

1 Washington to Bushrod Washington, Aug. 27, 1798; Writings: 
Ford, xiv, 75. 

2 Ib. In September, 1797, when Marshall was absent on the X. Y. Z. 
mission, Washington received a letter from one "John Langhorne" 
of Albemarle County. Worded with skillful cunning, it was designed 
to draw from the retired President imprudent expressions that could 
be used against him and the Federalists. It praised him, denounced 
his detractors, and begged him to disregard their assaults. (Lang- 
horne to Washington, Sept. 25, 1797; Writings: Sparks, xi, 501.) 
Washington answered vaguely. (Washington to Langhorne, Oct. 15, 
1797; Writings: Ford, xiii, 428-30.) John Nicholas discovered that the 
Langhorne letter had been posted at Charlottesville; that no person 
of that name lived in the vicinity; and that Washington's answer was 
called for at the Charlottesville post-office (where Jefferson posted 
and received letters) by a person closely connected with the master 
of Monticello. It was suspected, therefore, that Jefferson was the 
author of the fictitious letter. The mystery caused Washington much 
worry and has never been cleared up. (See Washington to Nicholas, 
Nov. 30, 1797; ib., footnote to 429-30; to Bushrod Washington, 
March 8, 1798; ib., 448; to Nicholas, March 8, 1798; ib., 449-50.) 
It is not known what advice Marshall gave Washington when the 
latter asked for his opinion; but from his lifelong conduct in such mat- 
ters and his strong repugnance to personal disputes, it is probable 
that Marshall advised that the matter be dropped. 



376 JOHN MARSHALL 

companion journeyed on horseback. For convenience 
in traveling, they had put their clothing in the same 
pair of saddle-bags. They arrived in a heavy rain 
and were "drenched to the skin." Unlocking the 
saddle-bags, the first article they took out was a black 
bottle of whiskey. With great hilarity each charged 
this to be the property of the other. Then came a 
thick twist of tobacco, some corn bread, and finally 
the worn apparel of wagoners; at some tavern on the 
way their saddle-bags had become exchanged for 
those of drivers. The rough clothes were grotesque 
misfits; and when, clad in these, his guests presented 
themselves, Washington, roaring with laughter, ex- 
pressed his sympathy for the wagoners when they, 
in turn, discovered the exchange they had made 
with the lawyers. 1 In such fashion began the con- 
ference that ended in John Marshall's candidacy for 
Congress in the vital campaign of 1798-99. 

This was the first time, so far as is known, that 
Marshall had visited Washington at his Potomac 
home. No other guest except Washington's nephew 
seems to have been present at this conference, so 
decisive of Marshall's future. The time was Septem- 
ber, 1798, and the conversations were held on the 
broad piazza, 2 looking out upon the river, with the 
new Capitol almost within sight. There, for " four 
or five days," his old commander used all his influ- 
ence to induce Marshall to become the Federalist 
candidate. 

"General Washington urged the importance of 
the crisis," writes Marshall in describing the cir- 

1 Paulding: Washington, ii, 191-92. 2 Marshall to Paulding, supra. 



CANDIDATE FOR CONGRESS 377 

cumstance; "every man," insisted Washington, 
"who could contribute to the success of sound opin- 
ions was required by the most sacred duty to offer 
his services to the public." Marshall doubted his 
" ability to do any good. I told him that I had made 
large pecuniary engagements which required close 
attention to my profession and which would distress 
me should the emoluments derived from it be aban- 
doned." 

Marshall told of his promise to the Federalist can- 
didate who w r as then making his campaign for elec- 
tion. Washington declared that this candidate still 
would withdraw in Marshall's favor; but Marshall 
remained unshaken. Finally Washington gave his 
own conduct as an example. Marshall thus describes 
the final appeal w T hich his old leader made to him: 
"He had withdrawn from office with a declaration 
of his determination never again, under any circum- 
stances, to enter public life. No man could be more 
sincere in making that declaration, nor could any 
man feel stronger motives for adhering to it. No 
man could make a stronger sacrifice than he did in 
breaking a resolution, thus publicly made, and 
which he had believed to be unalterable. Yet I 
saw him," continues Marshall, "in opposition to his 
public declaration, in opposition to his private feel- 
ings, consenting, under a sense of duty, to surrender 
the sweets of retirement, and again to enter the most 
arduous and perilous station which an individual could 
fill. My resolution yielded to this representation." * 

1 Marshall to Paulding, supra. This letter was in answer to one 
from Paulding asking Marshall for the facts as to Washington's part 
in inducing Marshall to run for Congress. 



378 JOHN MARSHALL 

There is a tradition that, at one point in the con- 
ference, Marshall, becoming offended by Washing- 
ton's insistence, which, runs the story, took the form 
of a peremptory and angrily expressed command, 
determined to leave so early in the morning that his 
host would have no opportunity to press the matter 
further; but, Washington noting Marshall's irrita- 
tion and anticipating his purpose, was on the piazza 
when his departing guest appeared at dawn, and 
there made the final appeal which won Marshall's 
reluctant consent. 

Marshall felt that he was making a heavy personal 
sacrifice; it meant to him the possible loss of the 
Fairfax estate. As we have seen, he had just de- 
clined appointment to the Supreme Bench x for this 
very reason, and this place later was given to Bushrod 
Washington, largely on Marshall's advice. 2 Adams 
had been reluctant to give Marshall up as one of 
the Associate Justices of the Supreme Court; "Gen- 
eral Marshall or Bushrod Washington will succeed 
Judge Wilson," wrote the President to his Secretary 
of State 3 nearly three months after the first tender 
of the place to Marshall in Philadelphia. Later on 
the President again returned to Marshall. 

"I still think that General Marshall ought to be 
preferred," he wrote. "Of the three envoys, the 
conduct of Marshall alone has been entirely satis- 
factory, and ought to be marked by the most de- 
cided approbation of the public. He has raised the 

1 Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. Hist. 
Soc. 

* lb. 

* Adams to Pickering, Sept. 14, 1798; Works: Adams, viii, 595. 



CANDIDATE FOR CONGRESS 379 

American people in their own esteem, and, if the 
influence of truth and justice, reason and argument 
is not lost in Europe, he has raised the consideration 
of the United States in that quarter of the world. 
... If Mr. Marshall should decline, I should next 
think of Mr. [Bushrod] Washington." 1 

Washington's appeal to Marshall's patriotism and 
sense of duty, however, outbalanced the weighty 
financial reasons which decided him against be- 
coming an Associate Justice of the Supreme Court. 
Thus, against his desire, he found himself once more 
in the hurly-burly of partisan politics. But this 
time the fight which he was forced to lead was to 
be desperate, indeed. 

The moment Marshall announced his candidacy 
he became the center of Republican attack in Vir- 
ginia. The virulence of the campaign against him 
was so great that it has become a tradition; and while 
scarcely any of the personal assaults, which appeared 
in print, are extant, they are known to have been 
ruthless, and utterly unrestrained both as to the 
charges made and the language used in making 
them. 

In his scurrilous review of Adams's Administra- 
tion, which Adams properly denounced as "a Mass 
of Lyes from the first page to the last," 2 John 
Wood repeats the substance of some of the attacks 
which, undoubtedly, were launched against Marshall 
in this bitter political conflict. "John Marshall," 
says Wood, "was an improper character in several 

1 Adams to Pickering, Sept. 26, 1798; Works: Adams, viii, 597. 
1 Adams to Rush, June 25, 1807; Old Family Letters, 152. 



380 JOHN MARSHALL 

respects; his principles of aristocracy were well 
known. Talleyrand, when in America, knew that 
this man was regarded as a royalist and not as a re- 
publican, and that he was abhorred by most honest 
characters." * 

The abuse must have been very harsh and unjust ; 
for Marshall, who seldom gave way to resentment, 
complained to Pickering with uncharacteristic tem- 
per. "The whole malignancy of Anti-federalism," he 
writes, "not only in the district, where it unfortu- 
nately is but too abundant, but throughout the 
State, has become uncommonly active and considers 
itself as peculiarly interested in the reelection of the 
old member [Clopton]. 

"The Jacobin presses, which abound with us and 
only circulate within the State, teem with publica- 
tions of which the object is to poison still further the 
public opinion and which are level'd particularly 
at me. Anything written by me on the subject of 
French affairs wou'd be ascrib'd to me, whether it 
appear'd with or without my signature and wou'd 
whet and sharpen up the sting of every abusive 
scribbler who had vanity enough to think himself 
a writer because he cou'd bestow personal abuse 
and cou'd say things as malignant as they are ill 
founded." 2 

1 Wood, 260. Wood's book was " suppressed" by Aaron Burr, who 
bought the plates and printer's rights. It consists of dull attacks on 
prominent Federalists. Jefferson's friends charged that Burr sup- 
pressed it because of his friendship for the Federalist leaders. (See 
Cheetham's letters to Jefferson, Dec. 29, 1801, Jan. 30, 1802, Proceed- 
ings, Mass. Hist. Soc. (April and May, 1907) 51-58.) Soon afterward 
Jefferson began his warfare on Burr. 

2 Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. 



CANDIDATE FOR CONGRESS 381 

The publication of the American envoys' dis- 
patches from France, which had put new life into the 
Federalist Party, had also armed that decaying or- 
ganization with enough strength to enact the most 
imprudent measures that its infatuated leaders ever 
devised. During June and July, 1798, they had 
succeeded in driving through Congress the famous 
Alien and Sedition Laws. 1 

The Alien Act authorized the President to order 
out of the country all aliens whom he thought 
"dangerous" or "suspected" of any "treasonable or 
secret machination against the government" on pain 
of imprisonment not to exceed three years and of 
being forever afterwards incapacitated from becom- 
ing citizens of the United States. But if the alien 
could prove to the satisfaction of the President that 
he was not dangerous, a presidential "license" might 
be granted, permitting the alien to remain in the 
United States as long as the President saw fit and in 
such place as he might designate. If any expelled 
alien returned without permission he was to be im- 
prisoned as long as the President thought "the 
public safety may require." 

The Sedition Act provided penalties for the crime 
of unlawful combination and conspiracy against the 
Government; 2 a fine not exceeding two thousand 
dollars and imprisonment not exceeding two years 

Hist. Soc. This campaign was unusually acrimonious everywhere. 
"This Electioneering is worse than the Devil." (Smith to Bayard, 
Aug. 2, 1798; Bayard Papers: Donnan, 69.) 

1 See Statutes at Large, 506, 570, 577, for Alien Acts of June 18, 
June 25, and July 6, and ib., 196, for Sedition Law of July 14, 1798. 

1 This section was not made a campaign issue by the Republicans. 



382 JOHN MARSHALL 

for any person who should write, print, publish, or 
speak anything "false, scandalous and malicious'* 
against the Government, either House of Congress, 
or the President "with intent to defame" the Gov- 
ernment, Congress, or the President, or "to bring 
them or either of them into contempt or disrepute; 
or to excite against them or either or any of them 
the hatred of the good people of the United States, 
or to stir up sedition within the United States." 

When Jefferson first heard of this proposed stupid 
legislation, he did not object to it, even in his inti- 
mate letters to his lieutenant Madison. 1 Later, how- 
ever, he became the most ferocious of its assailants. 
Hamilton, on the other hand, saw the danger in the 
Sedition Bill the moment a copy reached him: "There 
are provisions in this bill . . . highly exceptionable," 
he wrote. "I hope sincerely the thing may not be 
hurried through. Let us not establish a tyranny. 
Energy is a very different thing from violence." 2 
When Madison got the first inkling of the Alien Bill, 
he wrote to Jefferson that it "is a monster that must 
forever disgrace its parents." 3 

As soon as the country learned what the Alien and 
Sedition Laws contained, the reaction against the 
Federalist Party began. In vain did the Federalists 
plead to the people, as they had urged in the debate 
in Congress, that these laws were justified by events; 
in vain did they point out the presence in America of 

1 Jefferson to Madison, May 10, 1798; Works: Ford, viii, 417; and 
to Monroe, May 21, 1798; ib., 423. Jefferson's first harsh word was to 
Madison, June 7, 1798; ib., 434. 

2 Hamilton to Wolcott, June 29, 1798; Works: Lodge, x, 295. 

3 Madison to Jefferson, May 20, 1798; Writings: Hunt, vi, 320. 



CAXDIDATE FOR CONGRESS 383 

large numbers of foreigners who were active and bit- 
ter against the American Government; in vain did 
they read to citizens the abuse published in news- 
papers against the Administration and cite the fact 
that the editors of these libelous sheets were aliens. 1 

The popular heart and instinct were against these 
crowning blunders of Federalism. xAlthough the 
patriotic wave started by Marshall's return and the 
X. Y. Z. disclosures was still running strong, a more 
powerful counter-current was rising. "Liberty of 
the press," "freedom of speech," "trial by jury" at 
once became the watchwords and war-cries of Re- 
publicanism. On the hustings, in the newspapers, at 
the taverns, the Alien and Sedition Law r s were de- 
nounced as unconstitutional — they were null and 
void — no man, much less any State, should obey or 
respect them. 

The Alien Law, said its opponents, merged the 
Judicial and the Executive Departments, which the 
Constitution guaranteed should be separate and dis- 
tinct; the Sedition Act denied freedom of speech, 
with which the Constitution expressly forbade Con- 
gress to interfere; both struck at the very heart of 
liberty — so went the Republican argument and 
appeal. 2 

In addition to their solid objections, the Republi- 
cans made delirious prophecies. The Alien and Sedi- 
tion Laws were, they asserted, the beginning of mon- 

1 For the Federalists' justification of the Alien and Sedition Laws 
see Gibbs, ii, 78 et seq. 

2 As a matter of fact, the anger of Republican leaders was chiefly 
caused by their belief that the Alien and Sedition Laws were aimed 
at the Republican Party as such, and this, indeed, was true. 



384 JOHN MARSHALL 

archy, the foundation of absolutism. The fervid 
Jefferson indulged, to his heart's content, in these 
grotesque predictions: "The alien & sedition laws are 
working hard," declared the great Republican. In- 
deed, he thought them only "an experiment on the 
American mind to see how far it will bear an avowed 
violation of the constitution. If this goes down, we 
shall immediately see attempted another act of Con- 
gress declaring that the President shall continue in 
office during life, reserving to another occasion the 
transfer of the succession to his heirs, and the estab- 
lishment of the Senate for life. . . . That these things 
are in contemplation, I have no doubt; nor can I be 
confident of their failure, after the dupery of which our 
countrymen have shewn themselves susceptible." 1 

Washington was almost as extravagant on the 
other side. When an opponent of the Alien and Sedi- 
tion Acts asked him for his opinion of them, he ad- 
vised his questioner to read the opposing arguments 
"and consider to what lengths a certain description 
of men in our country have already driven and seem 
resolved further to drive matters" and then decide 
whether these laws are not necessary, against those 
"who acknowledge no allegiance to this country, and 
in many instances are sent among us.. . for the 
express purpose of poisoning the minds of our people, 
— and to sow dissensions among them, in order to 
alienate their affections from the government of 
their choice, thereby endeavoring to dissolve the 
Union." 2 

1 Jefferson to S. T. Mason, Oct. 11, 1798; Works: Ford, viii, 450. 

2 Washington to Spotswood, Nov. 22, 1798; Writings: Ford, xiv, 
121-22. 



CANDIDATE FOR CONGRESS 385 

Washington thought that the ferocious Republi- 
can attack on the Alien and Sedition Laws was but a 
cunning maneuver of politicians, and this, indeed, for 
the moment at least, seems to have been the case. 
"The Alien and Sedition Laws are now the desiderata 
of the Opposition. . . . But any thing else would 
have done, — and something there will always be, 
for them to torture; and to disturb the public mind 
with their unfounded and ill favored forebodings" 
was his pessimistic judgment. 1 

He sent "to General Marshall Judge Addison's 
charge to the grand juries of the county courts of the 
Fifth Circuit of the State of Pennsylvania. . . . This 
charge is on the liberty of speech and of the press and 
is a justification of the sedition and alien laws. But," 
wrote Washington, "I do not believe that . . . it . . . 
or . . . any other writing will produce the least 
change in the conduct of the leaders of the opposition 
to the measures of the general government. They 
have points to carry from which no reasoning, no 
consistency of conduct, no absurdity can divert 
them. If, however, such writings should produce 
conviction in the mind of those who have hitherto 
placed faith in their assertions, it will be a fortunate 
event for this country." 2 

1 Washington to Murray, Dec. 26, 1798; Writings: Ford, xiv, 132. 

2 Washington to Bushrod Washington, Dec. 31, 1798; ib., 135-36. 
Judge Addison's charge was an able if intemperate interpretation of 
the Sedition Law. The Republican newspapers assailed and ridiculed 
this very effectively in the presidential campaign of 1800. "Alexan- 
der Addison has published in a volume a number of his charges to 
juries — and precious charges they are — brimstone and saltpetre, 
assifcetida and train oil." (Aurora, Dec. 6, 1800. See Chief Justice 
Ellsworth's comments upon Judge Addison's charge in Flanders, ii, 
193.) 



386 JOHN MARSHALL 

Marshall had spoken in the same vein soon after 
his arrival at Richmond. "The people . . . are 
pretty right as it respects France," he reports to 
the Secretary of State. The Republican criticisms of 
the X. Y. Z. mission "make so little impression that 
I believe France will be given up and the attack 
upon the government will be supported by the alien 
and sedition laws. I am extremely sorry to observe 
that here they are more successful and that these 
two laws, especially the sedition bill, are viewed by 
a great many well meaning men, as unwarranted 
by the constitution. 

" I am entirely persuaded that with many the hate 
of Government of our country is implacable and that 
if these bills did not exist the same clamor would be 
made by them on some other account, but," truth- 
fully and judicially writes Marshall, "there are also 
many who are guided by very different motives, and 
who tho' less noisy in their complaints are seriously 
uneasy on this subject." * 

The Republicans pressed Marshall particularly 
hard on the Alien and Sedition Laws, but he found 
a way to answer. Within a few days after he had 
become the Federalist candidate, an anonymous 
writer, signing himself "Freeholder," published in 
the Richmond newspapers an open letter to Marshall 
asking him whether he was for the Constitution; 
whether the welfare of America depended on a for- 
eign alliance; whether a closer connection with Great 
Britain was desirable; whether the Administration's 

1 Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. 
Hist. Soc, 



CANDIDATE FOR CONGRESS 387 

conduct toward France was wise; and, above all, 
whether Marshall was "an advocate of the alien 
and sedition bills or in the event of your election 
will you use your influence to obtain a repeal of 
these laws?" 

In printing Marshall's answers to "Freeholder," 
the "Times and Virginia Advertiser" of Alexan- 
dria remarked: "Mr. John Marshall has offered as a 
candidate for a representative in the next Congress. 
He has already begun his electioneering campaign. 
The following are answers to some queries proposed 
to him. Whether the queries were propounded with 
a view of discovering his real sentiments, or whether 
they were published by one of his friends to serve 
electioneering purposes, is immaterial : — The prin- 
ciples Mr. Marshall professes to possess are such as 
influence the conduct of every real American." * 

A week later Marshall published his answers. 
"Every citizen," says he, "has a right to know the 
political sentiments of a candidate"; and besides, 
the candidate wishes everybody to know his "real 
principles" and not "attribute" to him "those with 
which active calumny has . . . aspersed" him. In 
this spirit Marshall answers that " in heart and senti- 
ment, as well as by birth and interest," he is "an 
American; attached to the . . . Constitution . . . 
which will preserve us if we support it firmly." 

He is, he asserts, against any alliance, "offensive 
or defensive," with Great Britain or "any closer 
connection with that nation than already exists. . . . 

1 Oct. 11, 1798. The questions of " Freeholder" were, undoubtedly, 
written with Marshall's knowledge. Indeed a careful study of them 
leads one to suspect that he wrote or suggested them himself. 



388 JOHN MARSHALL 

No man in existence is more decidedly opposed to 
such an alliance or more fully convinced of the evils 
that would result from it." Marshall declares that 
he is for American neutrality in foreign wars; and 
cites his memorial to Talleyrand as stating his views 
on this subject. 

"The whole of my politics respecting foreign na- 
tions, are reducible to this single position : . . . Com- 
mercial intercourse with all, but political ties with 
none . . . buy as cheap and sell as dear as possible 
. . . never connect ourselves politically with any 
nation whatever." 

He disclaims the right to speak for the Administra- 
tion, but believes it to have the same principles. It 
France, while at war with Great Britain, should also 
make war on America, "it would be madness and 
folly" not to secure the "aid of the British fleets to 
prevent our being invaded"; but, not even for that, 
would he "make such a sacrifice as ... we should 
make by forming a permanent political connection 
with . . . any nation on earth." 

Marshall says that he believes the Administration's 
policy as regards France to have been correct, and 
necessary to the maintenance "of the neutrality and 
independence of our country." Peace with France 
was not possible "without sacrificing those great 
objects," for "the primary object of France is . . . 
dominion over others." The French accomplish 
this purpose by "immense armies on their part 
and divisions among . . . those whom they wish to 
subdue." 

Marshall declares that he is "not an advocate of 



CANDIDATE FOR CONGRESS 389 

the Alien and Sedition Bills," and, had he been in 
Congress, "certainly would have opposed them," 
although he does not "think them fraught with all 
those mischiefs ascribed to them." But he thinks 
them "useless . . . calculated to create unnecessary 
discontents and jealousies"; and that, too, "at a 
time when our very existence as a nation may de- 
pend on our union." 

He believes that those detested laws "would never 
have been enacted" if they had been opposed on 
these principles by a man not suspected of intending 
to destroy the government or being hostile to it." 
The effort to repeal them "will be made before he 
can become a member of Congress"; if it fails and 
is renewed after he takes his seat, he "will obey the 
voice of his constituents." He thinks, however, it 
will be unwise to revive the Alien and Sedition Acts 
which are, by their own terms, about to expire; and 
Marshall pledges that he will "indisputably oppose 
their revival." * 

Upon Marshall as their favorite candidate for 
Congress, the eyes of the Federalist leaders in other 
States were focused. They were particularly anxious 
and uncertain as to his stand on the Alien and Sedi- 
tion Laws; for he seems to have privately expressed, 
while in Philadelphia on his return from France, a 
mild disapproval of the wisdom and political expe- 

1 The Times and Virginia Advertiser, Alexandria, Virginia, Octo- 
ber 11, 1798. This paper, however, does not give "Freeholder's" 
questions. The Columbian Centinel, Boston, October 20, 1798, prints 
both questions and answers, but makes several errors in the latter. 
The correct version is given in Appendix III, infra, where "Free* 
holder's" questions and Marshall's answers appear in full. 



890 JOHN MARSHALL 

diency of this absurd legislation. His answers to 
"Freeholder" were therefore published everywhere. 
When the New England Federalists read them in 
the "Columbian Centinel" of Saturday, October 
20, most of them were as hot against Marshall as 
were the rabid Virginia Republicans. 

Ames whetted his rhetoric to razor edge and 
slashed without mercy. He describes Republican 
dismay when Marshall's dispatches were published: 
"The wretches [Republicans] looked round, like 
Milton's devils when first recovering from the 
stunning force of their fall from Heaven, to see 
what new ground they could take." They chose, 
says Ames, "the alien and sedition bills, and the 
land tax" with which to arouse discontent and re- 
vive their party. So "the implacable foes of the 
Constitution — foes before it was made, while it was 
making, and since — became full of tender fears 
lest it should be violated by the alien and sedition 
laws." 

The Federalists, complained Ames, "are forever 
hazarding the cause by heedless and rash conces- 
sions. John Marshall, with all his honors in blossom 
and bearing fruit, answers some newspaper queries 
unfavorably to these laws. . . . No correct man, — 
no incorrect man, even, — whose affections and 
feelings are wedded to the government, would give 
his name to the base opposers of the law. . . . This 
he has done. Excuses may palliate, — future zeal in 
the cause may partially atone, — but his character 
is done for. . . . Like a man who in battle receives 
an ounce ball in his body — it may heal, it lies too 



CANDIDATE FOR CONGRESS 391 

deep to be extracted. . . . There let it lie. False 
Federalists, or such as act wrong from false fears, 
should be dealt hardly by, if I were Jupiter Tonans. 
. . . The moderates [like Marshall] are the meanest 
of cowards, the falsest of hypocrites." x Theodore 
Sedgwick declared that Marshall's "mysterious & 
unpardonable " conduct had aided " french villainy " 
and that he had " degraded himself by a mean & 
paltry electioneering trick." 2 

At first, the Republicans praised Marshall's 
stand; and this made the New England Federalists 
frantic. Cabot, alone, defended Marshall in the 
press, although not over his own name and only as 
a matter of party tactics. He procured some one 
to write to the "Columbian Centinel" under the 
name of "A Yankee Freeholder." This contributor 
tried to explain away Marshall's offense. 

"General Marshall is a citizen too eminent for his 
talents, his virtues and his public services, to merit 
so severe a punishment as to [receive the] applause 
of disorganizes [Republicans]." He should be saved 
from the "admiration of the seditious''' — that 
much was due to Marshall's "spirit, firmness and 
eloquence" in the contest with "the Despots of 
France." As "drowning men would catch at straws" 
so " the eagle-eyed and disheartened sons of faction" 
had "with forlorn and desperate . . . avidity . . . 
seized on" Marshall's answers to "Freeholder." 

And no wonder; for "even good men have stood 

1 Ames to Gore, Dec. 18, 1798; Works: Ames, i, 245-47. 
• Sedgwick to Pickering, Oct. 23, 1798; Pickering MSS., Mass. 
Hist. Soc. 



392 JOHN MARSHALL 

appalled, at observing a man whom they so highly 
venerate soliciting votes at the expense of princi- 
ples which they deem sacred and inviolable." " Yan- 
kee Freeholder" therefore proposes "to vindicate 
General Marshall." 

Marshall was the only Richmond Federalist who 
could be elected; he "patriotically" had consented 
to run only because of "the situation and danger of 
his country at this moment." Therefore "it was 
absolutely necessary to take all the ordinary steps" 
to succeed. This "may appear extraordinary ... to 
those who are only acquainted with the delicacy of 
New England elections where personal solicitation 
is the Death-warrant to success"; but it was "not 
only pardonable but necessary ... in the Southern 
States." 

"Yankee Freeholder" reminded his readers that 
"Calumny had assailed General Marshall, in 
common with other men of merit." Virginia news- 
papers had "slandered him"; politicians had called 
him "Aristocrat, Tory, and British Agent. All this 
abuse . . . would infallibly have rendered him popu- 
lar in New-England" — but not so in "Virginia," 
where there were "too many ignorant, ill-informed 
and inflamed minds." 

Therefore, "it became necessary that General 
Marshall should explicitly exhibit his political 
creed." After all, his answers to " Freeholder " were 
not so bad — he did not assail the constitutionality 
of the Alien and Sedition Laws. "If Gen. Marshall 
thought them unconstitutional or dangerous to lib- 
erty, would he" be content merely to say they were 



CANDIDATE FOR CONGRESS 393 

unnecessary? "Would a man of General Mar- 
shall's force of reasoning, simply denominate laws 
s" if he thought them unconstitutional? "No 
— the idea is too absurd to be indulged. . . . Time 
and General Marshall's conduct will hereafter 
prove that I am not mistaken in my opinion of his 
sentiments." 1 

Cabot's strategy had little effect on New Eng- 
land, which appeared to dislike Virginia with a curi- 
ous intolerance. The Essex County politician, never- 
theless, stood by his guns; and six months later thus 
reassures King: "I am ready to join you as well as 
Ames in reprobating the publication of Marshall's 
sentiments on the Sedition & Alien Acts, but I still 
adhere to my first opinion that Marshall ought not 
to be attacked in the Newspapers, nor too severely 
condemned anywhere, because Marshall has not yet 
learned his whole lesson, but has a mind & disposi- 
tion which can hardly fail to make him presently an 
accomplished (political) Scholar & a very useful 
man. 

"Some allowance too should be made," contends 
Cabot, "for the influence of the Atmosphere of 
Virginia which doubtless makes every one who 
breathes it visionary &, upon the subject of Free 
Govt., incredibly credulous; but it is certain that 
Marshall at Phila. would become a most powerful 
auxiliary to the cause of order & good Govt., & 
therefore we ought not to diminish his fame which 
wou'd ultimately be a loss to ourselves." 2 

1 Columbian Centinel (Boston), Oct. 24, 1798. 

2 Cabot to King, April 26, 1799; King, iii, 9. 



394 JOHN MARSHALL 

The experienced practical politician, Sedgwick, 
correctly judged that "Freeholder's" questions to 
Marshall and Marshall's answers were an "election- 
eering trick." But Pickering stoutly defended Mar- 
shall upon this charge. "I have not met with one 
good federalist, who does not regret his answers to 
the Freeholder; but I am sorry that it should be 
imagined to be an 'electioneering trick.' . . . Gen- 
eral Marshall is incapable of doing a dishonorable 
act." Only Marshall's patriotism had induced him 
to accept the French mission, said the Secretary of 
State. 1 Nothing but "the urging of friends . . . 
overcame his reluctance to come to Congress. . . . 
A man of untainted honor," had informed Pickering 
that "Marshall is a Sterling fellow.'* 2 

The Federalists' complaints of him continued to 
be so strong and widespread, however, that they 
even reached our legations in Europe: "I too have 
lamented that John Marshall, after such a mission 
particularly, should lend himself thus against a law 
which the French Jacobinism in the United States 
had forced government to adopt. M[arshall] before, 
was not, that we ever heard of, one of us." 3 

Toward the end of October Marshall gives his 
private opinion of the Virginia Republicans and 
their real motives, and foretells the Virginia Reso- 
lutions. "The real french party of this country 

1 This was not true. The Fairfax embarrassment, alone, caused 
Marshall to go to France in 1797. 

2 Pickering to Sedgwick, Nov. 6, 1798; Pickering MSS., Mass. Hist. 
Soc. 

3 Murray to J. Q. Adams, March 22, 1799; Letters: Ford, 530. 
Murray had been a member of Congress and a minor Federalist poli- 
tician. By "us" he means the extreme Federalist politicians. 



CANDIDATE FOR CONGRESS 395 

again begins to show itself," he writes. "There are 
very many indeed in this part of Virginia who speak 
of our own government as an enemy infinitely more 
formidable and infinitely more to be guarded against 
than the French Directory. Immense efforts are 
made to induce the legislature of the state which will 
meet in Dec'r to take some violent measure which 
may be attended with serious consequences. I am 
not sure that these efforts will entirely fail. It re- 
quires to be in this part of Virginia to know the de- 
gree of irritation which has been excited and the 
probable extent of the views of those who excite it." 1 

The most decent of the attacks on Marshall were 
contained in a series of open letters first published 
in the "Aurora" 2 and signed "Curtius." 

"You have long been regarded," writes Curtius, 
"as the leader of that party in this State" which has 
tried "by audacious efforts to erect a monarchy or 
aristocracy upon the ruins of our free constitution. 
The energy of your mind and the violence of your 
zeal have exalted you to this bad eminence." If 
you had "employed your talents in defense of the 
people . . . your history would have been read in a 
nation's eyes." 

"The publication of your dispatches and the 
happy exercise of diplomatic skill has produced a 
momentary delusion and infatuation in which an 
opposition to the administration is confounded with 
hostility to the government and treason to the coun- 
try. . . . The execrations and yells against French 

1 Marshall to Pickering, Oct. 22, 1798; Pickering MSS., Mass. 
Hist. Soc. 

2 Adams: Gallatin, 212. 



396 JOHN MARSHALL 

cruelty and French ambition, are incessantly kept 
up by the hirelings of Great Britain and the enemies 
of liberty." 

But, he cries, "the vengeance of an oppressed 
and insulted people is almost as terrible as the 
wrath of Heaven"; and, like a true partisan, Cur- 
tius predicts that this is about to fall on Marshall. 
Why, he asks, is Marshall so vague on the con- 
stitutionality of the Alien and Sedition Laws? 1 
"Notwithstanding the magnitude ... of your tal- 
ents, you are ridiculously awkward in the arts of 
dissimulation and hypocrisy. ... It is painful to 
attack ... a man whose talents are splendid and 
whose private character is amiable"; but "sacred 
duties ... to the cause of truth and liberty require 
it." Alas for Marshall! "You have lost forever," 
Curtius assures him, "the affection of a nation and 
the applause of a world. In vain will you pursue 
the thorny and rugged path that leads to fame." 2 

But while "monarchist," "aristocrat," "British 

1 "Freeholder" had not asked Marshall what he thought of the 
constitutionality of these laws. 

2 Thompson: The Letters of Curtius. John Thompson of Peters- 
burg was one of the most brilliant young men that even Virginia 
ever produced. See Adams: Gallatin, 212, 227. There is an interesting 
resemblance between the uncommon talents and fate of young John 
Thompson and those of Francis Walker Gilmer. Both were remark- 
ably intellectual and learned; the characters of both were clean, fine, 
and high. Both were uncommonly handsome men. Neither of them 
had a strong physical constitution; and both died at a very early age. 
Had John Thompson and Francis Walker Gilmer lived, their names 
would have been added to that wonderful list of men that the 
Virginia of that period gave to the country. 

The intellectual brilliancy and power, and the lofty character of 
Thompson and Gilmer, their feeble physical basis and their early pass- 
ing seem like the last effort of that euochal human impulse which pro- 
duced Henry, Madison, Mason, Jefferson, Marshall, and Washington. 



CANDIDATE FOR CONGRESS 397 

agent," "enemy of free speech," "destroyer of trial 
by jury " were among the more moderate epithets 
that filled the air from Republican lips; and "anar- 
chist," "Frenchman," "traitor," "foe of law and 
order," "hater of government " were the milder of 
the counter-blasts from the Federalists, all this was 
too general, scattered, and ineffective to suit the 
leader of the Republican Party. Jefferson saw that 
the growing popular rage against the Alien and 
Sedition Laws must be gathered into one or two 
concentrated thunderbolts and thus hurled at the 
heads of the already quaking Federalists. 

How to do it was the question to which Jefferson 
searched for an answer. It came from the bravest, 
most consistent, most unselfish, as well as one of the 
very ablest of Republicans, John Taylor "of Caro- 
line," Virginia. In a letter to Jefferson concerning the 
Alien and Sedition Laws, this eminent and disinter- 
ested radical suggested that "the right of the State 
governments to expound the constitution might possibly 
be made the basis of a movement towards its amend- 
ment. If this is insufficient the people in state con- 
ventions are incontrovertibly the contracting parties 
and, possessing the infringing rights, may proceed 
by orderly steps to attain the object." 1 

So was planted in Jefferson's mind the philosophy 
of secession. In that fertile and receptive soil it grew 
with magic rapidity and bore fatal fruit. Within two 
months after he received Taylor's letter, Jefferson 
wrote the historic resolutions which produced a situ- 

1 Taylor to Jefferson, June 25, 1798; as quoted in Branch Histori- 
cal Papers, ii, 225. See entire letter, ib., 271-76. 



398 JOHN MARSHALL 

ation that, a few years afterward, called forth Mar- 
shall's first great constitutional opinion, and, not 
many decades later, gave the battle-cry that rallied 
heroic thousands to armed resistance to the National 
Government. 1 On October 5, 1798, Nicholas writes 
Jefferson that he has delivered to "Mr. John Breck- 
enridge a copy of the resolutions that you sent me." 2 
They were passed by the Legislature of Kentucky 
on November 14, 1798; and the tremendous conflict 
between Nationality and States' Rights, which for 
so long had been preparing, at last was formally be- 
gun. 3 Jefferson's " Kentucky Resolutions " declared 
that parts of the Alien and Sedition Laws were 
"altogether void and of no effect." 4 Thus a State 

1 For an excellent treatment of the Kentucky and Virginia Resolu- 
tions see Von Hoist: Constitutional History of the United States, i, 
chap. iv. 

2 Nicholas to Jefferson, Oct. 5, 1798; quoted by Channing in "Ken- 
tucky Resolutions of 1798"; Amer. Hist. Rev., xx, no. 2, Jan., 1915, 
333-36. 

3 Writing nearly a quarter of a century later, Jefferson states that 
Nicholas, Breckenridge, and he conferred on the matter; that his draft 
of the " Kentucky Resolutions" was the result of this conference; and 
that he " strictly required" their " solemn assurance" that no one else 
should know that he was their author. (Jefferson to Breckenridge, 
Dec. 11, 1821; Works: Ford, viii, 459-60.) 

Although this letter of Jefferson is positive and, in its particulars, 
detailed and specific, Professor Channing has demonstrated that 
Jefferson's memory was at fault; that no such conference took place; 
and that Jefferson sent the resolutions to Nicholas, who placed them 
in the hands of Breckenridge for introduction in the Kentucky Legis- 
lature; and that Breckenridge and Nicholas both thought that the 
former should not even see Jefferson, lest the real authorship of the 
resolutions be detected. (See "The Kentucky Resolutions": Chan- 
ning, in Amer. Hist. Rev., xx, no. 2, Jan., 1915, 333-36.) 

4 See Jefferson's "Rough Draught" and "Fair Copy" of the Ken- 
tucky Resolutions; and the resolutions as the Kentucky Legislature 
passed them on Nov. 10, 1798; Works: Ford, viii, 458-79. See exam- 
ination of Marshall's opinion in Marbury vs. Madison, vol. m of 
this work. 



CANDIDATE FOR CONGRESS 399 

asserted the "right" of any or all States to annul 
and overthrow a National law. 

As soon as Kentucky had acted, Jefferson thus 
writes Madison: "I enclose you a copy of the 
draught of the Kentucky resolves. I think we 
should distinctly affirm all the important principles 
they contain so as to hold that ground in future, and 
leave the matter in such a train as that we may not 
be committed absolutely to push the matter to ex- 
tremities, & yet may be free to push as far as events 
will render prudent." 1 

Madison accordingly drew the resolutions adopted 
by the Legislature of Virginia, December 21, 1798. 
While declaring the Alien and Sedition Laws uncon- 
stitutional, the Virginia Resolutions merely appealed 
to the other States to "co-operate with this state in 
maintaining unimpaired the authority, rights, and 
liberties reserved to the states respectively or to the 
people." 2 

The Legislature promptly adopted them and 
would gladly have approved far stronger ones. "The 
leaders . . . were determined upon the overthrow of 
the General Government; and if no other measure 
would effect it, that they would risk it upon the 
chance of war. . . . Some of them talked of 'seced- 
ing from the Union.'" 3 Iredell writes his wife: 
"The General Assembly of Virginia are pursuing 
steps which directly lead to a civil war; but there 
is a respectable minority struggling in defense of 

1 Jefferson to Madison, Nov. 17, 1798; Works: Ford, viii, 457. 

2 Writings: Hunt, vi, 326-31. 

3 Davie to Iredell, June 17, 1799; quoting from a Virginia inform* 
ant — very probably Marshall ; McRee, ii, 577. 



400 JOHN MARSHALL 

the General Government, and the Government it- 
self is fully prepared for anything they can do, re- 
solved, if necessary, to meet force with force." 1 
Marshall declared that he "never saw such intem- 
perance as existed in the Virginia] Assembly." 2 

Following their defiant adoption of Madison's 
resolutions, the Republican majority of the Legisla- 
ture issued a campaign pamphlet, also written by 
Madison, 3 under the form of an address to the peo- 
ple. The "guardians of State Sovereignty would be 
perfidious if they did not warn" the people "of 
encroachments which . . . may" result in "usurped 
power"; the State Governments would be "precipi- 
tated into impotency and contempt" in case they 
yielded to such National laws as the Alien and Sedi- 
tion Acts; if like "infractions of the Federal Com- 
pact" were repeated "until the people arose ... in 
the majesty of their strength," it was certain that 
" the way for a revolution would be prepared." 

The Federalist pleas "to disregard usurpation 
until foreign danger shall have passed" was "an arti- 
fice which may be forever used," because those who 
wished National power extended "can ever create 
national embarrassments to soothe the people to 
sleep whilst that power is swelling, silently, secretly 
and fatally." 

Such was the Sedition Act which "commits the 
sacrilege of arresting reason; . . . punishes without 
trial; . . . bestows on the President despotic powers 

1 Iredell to Mrs. Iredell; Jan. 24, 1799; McRee, ii, 543. 

2 Murray to J. Q. Adams, April 1, 1799; quoting Marshall to Sykes, 
Dec. 18, 1798; Letters: Ford, 534. 

3 Writings: Hunt, vi, 332-40. 



CANDIDATE FOR CONGRESS 401 

. . . which was never expected by the early friends of 
the Constitution." But now "Federal authority is 
deduced by implication" by which "the states will 
be stript of every right reserved." Such "tremen- 
dous pretensions . . . inflict a death wound on the 
Sovereignty of the States." Thus wrote the same 
Madison who had declared that nothing short of a 
veto by the National Government on "any and 
every act of the states" would suffice. There was, 
said Madison's campaign document, no "specified 
power" in the National Government "embracing a 
right against freedom of the press" — that was a 
"constitutional" prerogative of the States. 

" Calumny " could be redressed in the State courts ; 
but "usurpation can only be controuled by the act 
of society [revolution]." Here Madison quotes ver- 
batim and in italics from Marshall's second letter to 
Talleyrand in defense of the liberty of the press, 
without, however, giving Marshall credit for the 
language or argument. 1 Madison's argument is char- 
acteristically clear and compact, but abounds in 
striking phrases that suggest Jefferson. 2 

This "Address" of the Virginia Legislature was 
aimed primarily at Marshall, who was by far the 
most important Federalist candidate for Congress 
in the entire State. It was circulated at public ex- 
pense and Marshall's friends could not possibly get 
his views before the people so authoritatively or so 
widely. But they did their best, for it was plain that 

1 For Marshall's defense of the liberty of the press, quoted by 
Madison, see supra, chap. viii. 

2 Address of the General Assembly to the People of the Common- 
wealth of Virginia, Journal, H.D. (Dec., 1798), 88-90. 



402 JOHN MARSHALL 

Madison's Jeffersonized appeal, so uncharacteristic 
of that former Nationalist, must be answered. Mar* 
shall wrote the reply l of the minority of the Leg- 
islature, who could not "remain silent under the un- 
precedented" attack of Madison. "Reluctantly," 
then, they "presented the present crisis plainly 
before" the people. 

"For . . . national independence . . . the people 
of united America" changed a government by the 
British King for that of the Constitution. "The will 
of the majority produced, ratified, and conducts" 
this constitutional government. It was not perfect, 
of course; but "the best rule for freemen ... in the 
opinion of our ancestors, was . . . that ... of obedi- 
ence to laws enacted by a majority of" the people's 
representatives. 

Two other principles "promised immortality" to 
this fundamental idea: power of amendment and 
frequency of elections. "Under a Constitution thus 
formed, the prosperity of America" had become 
"great and unexampled." The people "bemoaned 
foreign war" when it "broke out"; but "they did 
not possess even a remote influence in its termina- 
tion." The true American policy, therefore, was in 
the "avoiding of the existing carnage and the con- 
tinuance of our existing happiness." It was for this 
reason that Washington, after considering every- 
thing, had proclaimed American Neutrality. Yet 
Genet had "appealed" to the people "with acri- 
mony" against the Government. This was resented 

1 Sedgwick to Hamilton, Feb. 7, 1799; Works: Hamilton, vi, 392-93; 
and to King, March W, 1799; King, ii, 581. And Murray to J. Q. 
Adams, April 5, 1799; Letters: Ford, 536. 



CANDIDATE FOR CONGRESS 403 

"for a while only" and "the fire was rekindled as 
occasion afforded fuel." 

Also, Great Britain's "unjustifiable conduct . . . 
rekindled our ardor for hostility and revenge." But 
"Washington, averse to war, "made his last effort to 
avert its miseries." So came the Jay Treaty by 
which "peace was preserved with honor." 

Marshall then reviews the outbursts against the 
Jay Treaty and their subsidence. France " taught by 
the bickerings of ourselves . . . reechoed American 
reproaches with French views and French objects"; 
as a result "our commerce became a prey to French 
cruisers; our citizens were captured" and British 
outrages were repeated by the French, our "former 
friend . . . thereby committing suicide on our na- 
tional and individual happiness." 

Emulating Washington, Adams had twice striven 
for "honorable" adjustment. This was met by "an 
increase of insolence and affront." Thus America 
had " to choose between submission . . . and ... in- 
dependence. What American," asks Marshall," could 
hesitate in the option?" And, "the choice being 
made, self-preservation commanded preparations 
for self-defense ... — the fleet, ... an army, a 
provision for the removal of dangerous aliens and the 
punishment of seditious citizens." Yet such meas- 
ures "are charged with the atrocious design of cre- 
ating a monarchy . . . and violating the constitu- 
tion." Marshall argues that military preparation is 
our only security. 

"Upon so solemn an occasion what curses would 
be adequate," asks Marshall, "to the supineness of 



404 JOHN MARSHALL 

our government, if militia were the only resort for 
safety, against the invasion of a veteran army, 
flushed with repeated victories, strong in the skill of 
its officers, and led by distinguished officers?" He 
then continues with the familiar arguments for mili- 
tary equipment. 

Then comes his attack on the Virginia Resolu- 
tions. Had the criticisms of the Alien and Sedition 
Laws "been confined to ordinary peaceable and con- 
stitutional efforts to repeal them," no objection 
would have been made to such a course; but when 
"general hostility to our government" and "pro- 
ceedings which may sap the foundations of our 
union" are resorted to, "duty" requires this appeal 
to the people. 

Marshall next defends the constitutionality of 
these acts. "Powers necessary for the attainment of 
all objects which are general in their nature, which 
interest all America" and "can only be obtained by 
the cooperation of the whole . . . would be naturally 
vested in the government of the whole." It is ob- 
vious, he argues, that States must attend to local 
subjects and the Nation to general affairs. 

The power to protect "the nation from the in- 
trigues and conspiracies of dangerous aliens; ... to 
secure the union from their wicked machinations, . . . 
which is essential to the common good," belongs to 
the National Government in the hands of which "is 
the force of the nation and the general power of pro- 
tection from hostilities of every kind." Marshall 
then makes an extended argument in support of 
his Nationalist theory. Occasionally he employs 



CANDIDATE FOR CONGRESS 405 

almost the exact language which, years afterwards, 
appears in those constitutional opinions from the 
Supreme Bench that have given him his lasting fame. 
The doctrine of implied powers is expounded with all 
of his peculiar force and clearness, but with some 
overabundance of verbiage. In no writing or spoken 
word, before he became Chief Justice of the United 
States, did Marshall so extensively state his consti- 
tutional views as in this unknown paper. 1 

The House of Delegates, by a vote of 92 against 
52, 2 refused to publish the address of the minority 
along with that of the majority. Thereupon the Fed- 
eralists printed and circulated it as a campaign docu- 
ment. It was so admired by the supporters of the 
Administration in Philadelphia that, according to 
the untrustworthy Callender, ten thousand copies 
were printed in the Capital and widely distributed. 3 

Marshall's authorship of this paper was not popu- 
larly known; and it produced little effect. Its tedious 
length, lighted only by occasional flashes of elo- 
quence, invited Republican ridicule and derision. It 
contained, said Callender, "such quantities of words 
. . . that you turn absolutely tired"; it abounded in 
"barren tautology"; some sentences were nothing 
more than mere "assemblages of syllables"; and 
"the hypocritical canting that so strongly marks it 
corresponds very well with the dispatches of X. Y. 
and Z." 4 

Marshall's careful but over-elaborate paper was 

1 Address of the Minority: Journal, H.D. (Dec., 1798), 88-90. 
Also printed as a pamphlet. Richmond, 1798. 

2 Journal, H.D. (1799), 90. 

* Callender: Prospect Bejore Us, 91. 4 lb., 112 et seq. 



406 JOHN MARSHALL 

not, therefore, generally read. But the leading Fed- 
eralists throughout the country were greatly pleased. 
The address was, said Sedgwick, "a masterly per- 
formance for which we are indebted to the pen of 
General Marshall, who has, by it, in some measure 
atoned for his pitiful electioneering epistle." x 

When Murray, at The Hague, read the address, he 
concluded that Marshall was its author: "He may 
have been weak enough to declare against those laws 
that might be against the policy or necessity, etc., 
etc., etc., yet sustain their constitutionality. ... I 
hope J. Marshall did write the Address." 2 

The Republican appeal, unlike that of Marshall, 
was brief, simple, and replete with glowing catch- 
words that warmed the popular heart and fell easily 
from the lips of the multitude. And the Republican 
spirit was running high. The Virginia Legislature 
provided for an armory in Richmond to resist 
"encroachments" of the National Government. 3 
Memorials poured into the National Capital. 4 By 
February "the tables of congress were loaded with 
petitions against" the unpopular Federalist legisla- 
tion. 5 

Marshall's opinion of the motives of the Republi- 
can leaders, of the uncertainty of the campaign, of 
the real purpose of the Virginia Resolutions, is 
frankly set forth in his letter to Washington acknowl- 

1 Sedgwick to King, March 20, 1799; King, ii, 581. 

2 Murray to J. Q. Adams, April 5, 1799; Letters: Ford, 536. 

3 Mordecai, 202; also Sedgwick to King, Nov. 15, 1799; King, iii, 
147-48. 

i Jefferson to Pendleton, Feb. 14, 1799; Works: Ford, ix, 46; and to 
Madison, Jan. 30, 1799; ib„ 31. 

6 Jefferson to Bishop James Madison, Feb. 27, 1799; ib., 62. 



CANDIDATE FOR CONGRESS 407 

edging the receipt of Judge Addison's charge: "No 
argument," wrote Marshall, "can moderate the 
leaders of the opposition. . . . However I may regret 
the passage of one of the acts complained of [Sedition 
Law] I am firmly persuaded that the tempest has not 
been raised by them. Its cause lies much deeper and 
is not easily to be removed. Had they [Alien and 
Sedition Laws] never been passed, other measures 
would have been selected. An act operating on the 
press in any manner, affords to its opposers argu- 
ments which so captivate the public ear, which so 
mislead the public mind that the efforts of reason" 
are unavailing. 

Marshall tells Washington that "the debates were 
long and animated" upon the Virginia Resolutions 
"which were substantiated by a majority of twenty- 
nine." He says that "sentiments were declared and 
. . . views were developed of a very serious and 
alarming extent. . . . There are men who will hold 
power by any means rather than not hold it; and who 
would prefer a dissolution of the union to a continu- 
ance of an administration not of their own party. 
They will risk all ills . . . rather than permit that 
happiness which is dispensed by other hands than 
their own." 

He is not sure, he says, of being elected; but adds, 
perhaps sarcastically, that "whatever the issue . . . 
may be I shall neither reproach myself, nor those 
at whose instance I have become a candidate, for 
the step I have taken. The exertions against me by " 
men in Virginia "and even from other states" are 
more "active and malignant than personal consid- 



408 JOHN MARSHALL 

erations would excite. If I fail," concludes Marshall, 
"I shall regret the failure more" because it will show 
"a temper hostile to our government . . . than of" 
his own "personal mortification." * 

The Federalists were convinced that these extreme 
Republican tactics were the beginning of a serious 
effort to destroy the National Government. "The 
late attempt of Virginia and Kentucky," wrote 
Hamilton, "to unite the State Legislatures in a di- 
rect resistance to certain laws of the Union can be 
considered in no other light than as an attempt to 
change the government"; and he notes the "hostile 
declarations" of the Virginia Legislature; its "actual 
preparation of the means of supporting them by 
force"; its "measures to put their militia on a 
more efficient footing " ; its "preparing considerable 
arsenals and magazines"; and its "laying new taxes 
on its citizens" for these purposes. 2 

To Sedgwick, Hamilton wrote of the "tendency of 
the doctrine advanced by Virginia and Kentucky to 
destroy the Constitution of the United States," and 
urged that the whole subject be referred to a special 
committee of Congress which should deal with the 
Virginia and Kentucky Resolutions and justify the 
laws at which they were aimed. "No pains or ex- 
pense," he insisted, "should be spared to disseminate 
this report. ... A little pamphlet containing it 
should find its way into every house in Virginia." 3 

1 Marshall to Washington, Jan. 8, 1799; Washington MSS., Lib. 
Cong. 

2 Hamilton to Dayton, 1799; Works: Lodge, x, 330. The day of 
the month is not given, but it certainly was early in January. Mr. 
Lodge places it before a letter to Lafayette, dated Jan. 6, 1799. 

b 3 Hamilton to Sedgwick, Feb. 2, 1799; Works: Lodge, x, 340-42. 



CANDIDATE FOR CONGRESS 409 

Thus the congressional campaign of 1798-99 
drew to a close. Marshall neglected none of those 
personal and familiar campaign devices which the 
American electorate of that time loved so well. His 
enemies declared that he carried these to the ex- 
treme; at a rally in Hanover County he "threw 
billets into the bonfires and danced around them 
with his constituents"; l he assured the voters that 
"his sentiments were the same as those of Mr. Clop- 
ton [the Republican candidate]"; he "spent several 
thousands of dollars upon barbecues." 2 

These charges of the besotted Callender, 3 written 
from his cell in the jail at Richmond, are, of course, 
entirely untrue, except the story of dancing about 
the bonfire. Marshall's answers to "Freeholder" dis- 
pose of the second; his pressing need of money for 
the Fairfax purchase shows that he could have af- 
forded no money for campaign purposes; and, indeed, 
this charge was so preposterous that even the reck- 
less Callender concludes it to be unworthy of belief. 

From the desperate nature of the struggle and the 
temper and political habit of the times, one might 
expect far harder things to have been said. Indeed, 
as the violence of the contest mounted to its climax, 
worse things were charged or intimated by word of 
mouth than were then put into type. Again it is the 
political hack, John Wood, who gives us a hint of 
the baseness of the slanders that were circulated; he 

1 This was probably true; it is thoroughly characteristic and fits in 
perfectly with his well-authenticated conduct after he became Chief 
Justice. (See vol. in of this work.) 

2 Callender: Prospect Before Us, 90 et seq. 

3 See Hildreth, v, 104, 210, 214, 340, 453-55. 



410 JOHN MARSHALL 

describes a scandal in which Marshall and Pinck- 
ney were alleged to have been involved while in 
Paris, the unhappy fate of a woman, her desperate 
voyage to America, her persecution and sad ending. 1 

Marshall was profoundly disgusted by the meth- 
ods employed to defeat him. Writing to his brother 
a short time before election day he briefly refers to 
the Republican assaults in stronger language than 
is to be found in any other letter ever written by 
him: — 

"The fate of my election is extremely uncertain. 
The means us'd to defeat it are despicable in the 
extreme and yet they succeed. Nothing I believe 
more debases or pollutes the human mind than 
faction [party]." 2 

The Republicans everywhere grew more confident 
as the day of voting drew near. Neutrality, the 
Alien and Sedition Laws, the expense of the provis- 
ional army, the popular fear and hatred of a perma- 
nent military force, the high taxes, together with the 
reckless charges and slanders against the Federalists 
and the perfect discipline exacted of the Republicans 
by Jefferson — all were rapidly overcoming the patri- 
otic fervor aroused by the X. Y. Z. disclosures. 
"The tide is evidently turning . . . from Marshall's 

1 Wood, 261-62. This canard is an example of the methods em- 
ployed in political contests when American democracy was in its 
infancy. 

2 Marshall to his brother James M., April 3, 1799; MS. Marshall 
uses the word "faction" in the sense in which it was then employed. 
"Faction" and "party" were at that time used interchangeably; and 
both words were terms of reproach. (See supra, chap, n.) If stated 
in the vernacular of the present day, this doleful opinion of Marshall 
would read: "Nothing, I believe, more debases or pollutes the human 
mind than partisan politics " 



CANDIDATE FOR CONGRESS 411 

romance" was the Republican commander's con- 
clusion as the end of the campaign approached. 1 

For the first time Marshall's personal popularity 
was insufficient to assure victory. But the animos- 
ity of the Republicans caused them to make a false 
move which saved him at the very last. They cir- 
culated the report that Patrick Henry, the arch- 
enemy of "aristocrats," was against Marshall be- 
cause the latter was one of this abhorred class. 
Marshall's friend, Archibald Blair, Clerk of the 
Executive Council, wrote Henry of this Republican 
campaign story. 

Instantly both the fighter and the politician in 
Henry were roused; and the old warrior, from his 
retirement at Red Hill, wrote an extraordinary 
letter, full of affection for Marshall and burning 
with indignation at the Republican leaders. The 
Virginia Resolutions meant the "dissolution" of the 
Nation, wrote Henry; if that was not the purpose of 
the Republicans "they have none and act ex tem- 
pore." As to France, "her conduct has made it to 
the interest of the great family of mankind to wish 
the downfall of her present government." For the 
French Republic threatened to "destroy the great 
pillars of all government and social life — I mean 
virtue, morality, and religion," which "alone ... is 
the armour . . . that renders us invincible." Also, 
said Henry, "infidelity, in its broad sense, under 
the name of philosophy, is fast spreading . . . under 
the patronage of French manners and principles." 

Henry makes "these prefatory remarks" to 

1 Jefferson to Pendleton, April 22, 1799; Works: Ford, ix, 64-65. 



412 JOHN MARSHALL 

"point out the kind of character amongst our 
countrymen most estimable in my [his] eyes." The 
ground thus prepared, Henry discharges all his 
guns against Marshall's enemies. "General Mar- 
shall and his colleagues exhibited the American char- 
acter as respectable. France, in the period of her 
most triumphant fortune, beheld them as unappalled. 
Her threats left them as she found them. . . . 

"Can it be thought that with these sentiments I 
should utter anything tending to prejudice General 
Marshall's election? Very far from it indeed. Inde- 
pendently of the high gratification I felt from his 
public ministry, he ever stood high in my esteem as 
a private citizen. His temper and disposition were 
always pleasant, his talents and integrity unques- 
tioned. 

"These things are sufficient to place that gentle- 
man far above any competitor in the district for 
congress. But when you add the particular informa- 
tion and insight which he has gained, and is able to 
communicate to our public councils, it is really 
astonishing, that even blindness itself should hesi- 
tate in the choice. . . . 

"Tell Marshall I love him, because he felt and 
acted as a republican, as an American. The story of 
the Scotch merchants and old torys voting for him 
is too stale, childish, and foolish, and is a French 
finesse; an appeal to prejudice, not reason and good 
sense. ... I really should give him my vote for 
Congress, preferably to any citizen in the state at 
this juncture, one only excepted [Washington]." l 

1 Henry to Blair, Jan. 8, 1799; Henry, ii, 591-94. 



CANDIDATE FOR CONGRESS 413 

Henry's letter saved Marshall. Not only was the 
congressional district full of Henry's political fol- 
lowers, but it contained large numbers of his close 
personal friends. His letter was passed from hand to 
hand among these and, by election day, was almost 
worn out by constant use. 1 

But the Federalist newspapers gave Henry no 
credit for turning the tide; according to these par- 
tisan sheets it was the "anarchistic" action of the 
Kentucky and Virginia Legislatures that elected 
Marshall. Quoting from a letter of Bushrod Wash- 
ington, who had no more political acumen than a 
turtle, a Federalist newspaper declared: "We hear 
that General Marshall's election is placed beyond 
all doubt. I was firmly convinced that the violent 
measures of our Legislature (which were certainly 
intended to influence the election) would favor the 
pretensions of the Federal candidates by disclosing 
the views of the opposite party." 2 

Late in April the election was held. A witness of 
that event in Richmond tells of the incidents of the 
voting which were stirring even for that period of 
turbulent politics. A long, broad table or bench was 
placed on the Court-House Green, and upon it the 
local magistrates, acting as election judges, took their 
seats, their clerks before them. By the side of the 
judges sat the two candidates for Congress; and 
when an elector declared his preference for either, 
the favored one rose, bowing, and thanked his 
supporter. 

1 Henry to Blair, Jan. 8, 1799; Henry, ii, 595. 

2 Virginia Herald (Fredericksburg), March 5, 1799. 



414 JOHN MARSHALL 

Nobody but freeholders could then exercise the 
suffrage in Virginia. 1 Any one owning one hundred 
acres of land or more in any county could vote, and 
this landowner could declare his choice in every 
county in which he possessed the necessary real 
estate. The voter did not cast a printed or written 
ballot, but merely stated, in the presence of the two 
candidates, the election officials, and the assembled 
gathering, the name of the candidate of his preference. 
There was no specified form for this announcement. 2 

"I vote for John Marshall." 

"Thank you, sir," said the lank, easy-mannered 
Federalist candidate. 

"Hurrah for Marshall!" shouted the compact 
band of Federalists. 

"And I vote for Clopton," cried another free- 
holder. 

"May you live a thousand years, my friend," 
said Marshall's competitor. 

"Three cheers for Clopton!" roared the crowd 
of Republican enthusiasts. 

Both Republican and Federalist leaders had seen 
to it that nothing was left undone which might bring 
victory to their respective candidates. The two 
political parties had been carefully "drilled to move 
together in a body." Each party had a business 
committee which attended to every practical detail 

1 This was true in most of the States at that period. 

2 This method of electing public officials was continued until the 
Civil War. (See John S. Wise's description of a congressional election 
in Virginia in 1855; Wise: The End of An Era, 55-56. And see Pro- 
fessor Schouler's treatment of this subject in his "Evolution of the 
American Voter"; Amer. Hist. Rev., ii, 665-74.) 



CANDIDATE FOR CONGRESS 415 

of the election. Not a voter was overlooked. "Sick 
men were taken in their beds to the polls; the halt, 
the lame, and the blind were hunted up and every 
mode of conveyance was mustered into service." 
Time and again the vote was a tie. No sooner did 
one freeholder announce his preference for Marshall 
than another gave his suffrage to Clopton. 

"A barrel of whisky with the head knocked in," 
free for everybody, stood beneath a tree; and "the 
majority took it straight," runs a narrative of a wit- 
ness of the scene. So hot became the contest that 
fist-fights were frequent. During the afternoon, 
knock-down and drag-out affrays became so general 
that the county justices had hard work to quell the 
raging partisans. Throughout the day the shouting 
and huzzaing rose in volume as the whiskey sank 
in the barrel. At times the uproar was "perfectly 
deafening; men were shaking fists at each other, 
rolling up their sleeves, cursing and swearing. . . . 
Some became wild with agitation." When a tie was 
broken by a new voter shouting that he was for 
Marshall or for Clopton, insults were hurled at his 
devoted head. 

"You, sir, ought to have your mouth smashed," 
cried an enraged Republican when Thomas Ruther- 
ford voted for Marshall; and smashing of mouths, 
blacking of eyes, and breaking of heads there were 
in plenty. "The crowd rolled to and fro like a surg- 
ing wave." * Never before and seldom, if ever, 

1 This account of election day in the Marshall-Clopton contest is 
from Munford, 208-10. For another fairly accurate but mild descrip- 
tion of a congressional election in Virginia at this period, see Mary 
Johnston's novel, Lewis Rand, chap. iv. 



416 JOHN MARSHALL 

since, in the history of Virginia, was any election so 
fiercely contested. When this "democratic" strug- 
gle was over, it was found that Marshall had been 
elected by the slender majority of 108. * 

Washington was overjoyed at the Federalist suc- 
cess. He had ridden ten miles to vote for General 
Lee, who was elected; 2 but he took a special delight 
in Marshall's victory. He hastened to write his po- 
litical protege: "With infinite pleasure I received the 
news of your Election. For the honor of the District 
I wish the majority had been greater; but let us be 
content, and hope, as the tide is turning, the current 
will soon run strong in your favor." 3 

Toward the end of the campaign, for the purpose 
of throwing into the contest Washington's personal 
influence, Marshall's enthusiastic friends had pub- 
lished the fact of Marshall's refusal to accept the 
various offices which had been tendered him by 
Washington. They had drawn a long bow, though 
very slightly, and stated positively that Marshall 
could have been Secretary of State. 4 Marshall has- 
tened to apologize : — 

"Few of the unpleasant occurrences" of the cam- 
paign "have given me more real chagrin than this. 
To make a parade of proffered offices is a vanity 
which I trust I do not possess; but to boast of one 
never in my power would argue a littleness of mind 

1 Henry, ii, 598. 2 Randall, ii, 495. 

3 Washington to Marshall, May 5, 1799; Writings: Ford, xiv, 180. 

4 As a matter of fact, they were not far wrong. Marshall almost 
certainly would have been made Secretary of State if Washington had 
believed that he would accept the portfolio. (See supra, 147.) The 
assertion that the place actually had been offered to Marshall seems 
to have been the only error in this campaign story. 



CANDIDATE FOR CONGRESS 417 

at which I ought to blush." Marshall tells Washing- 
ton that the person who published the report "never 
received it directly or indirectly from me." If he 
had known "that such a publication was designed" 
he "would certainly have suppressed it." It was 
inspired "unquestionably ... by a wish to serve 
me," says Marshall, "and by resentment at the 
various malignant calumnies which have been so 
profusely bestowed on me." 1 

Washington quickly reassured Marshall: "I am 
sorry to find that the publication you allude to 
should have given you a moment's disquietude. I 
can assure you it made no impression on my mind, 
of the tendency apprehended by you." 2 

As soon as all the election returns were in, Mar- 
shall reported to Washington that the defeat of two 
of the Federalist candidates for Congress was unex- 
pected and "has reduced us to eight in the legisla- 
ture of the Union"; that the Republicans main- 
tained their "majority in the house of Delegates," 
which "means an antifederal senator and governor," 
and that "the baneful influence of a legislature 
hostile perhaps to the Union — or if not so — to all 
its measures will be kept up." 3 

Marshall's campaign attracted the attention of 
the whole country, and the news of his success deeply 
interested both Federalists and Republicans. Pick- 
ering, after writing King of the Federalist success 
in New York City, declared that " the other domestic 

1 Marshall to Washington, May 1, 1799; Writings: Ford, xiv, 
footnote to 180-81; also Flanders, ii, 389. 

2 Washington to Marshall, May 5, 1799; Writings: Ford, xiv, 180. 

3 Marshall to Washington, May 16, 1799; Washington MSS., Lib. 
Cong. 



418 JOHN MARSHALL 

intelligence, still more important, is, that Genl. 
Marshall is elected a member of Congress for his 
district." l 

Speaker Sedgwick also informed King of Mar- 
shall's election. "General Marshall you know is a 
member of the House of Representatives. His tal- 
ents, his character and the situation he has been in, 
will combine to give him an influence, which will be 
further aided by the scene which he immediately 
represents. He may and probably will give a tone to 
the federal politics South of the Susquehannah. 
I well know the respect he entertains for you and 
for your opinions." 2 

But the Federalist leaders were none too sure of 
their Virginia congressional recruit. He was en- 
tirely too independent to suit the party organiza- 
tion. His campaign statement on the Alien and 
Sedition Laws angered and troubled them when it 
was made; and, now that Marshall was elected, his 
opinion on this, to the Federalists, vital subject, 
his admitted power of mind and character, and his 
weighty influence over the Southern wing of the 
Federalists caused serious apprehension among the 
party's Northern leaders. Sedgwick advises King 
to write Marshall on the subject of party regularity. 

"I have brought this subject to your mind, that 
you may decide on the propriety of a communica- 
tion of your sentiments to him, which you may do in 
season to be useful. Should he, which, indeed, I do 
not expect, conform his political conduct generally, to 

1 Pickering to King, May 4, 1799; King, iii, 13. 

2 Sedgwick to King, July 26, 1799; King, iii, 69. 



CANDIDATE FOR CONGRESS 419 

what seems indicated by his public declaration rela- 
tive to the alien & sedition acts, it would have been 
better that his insignificant predecessor should have 
been reelected. There never has been an instance 
where the commencement of a political career was 
so important as is that of General Marshall." 1 

Apprehension and uncertainty as to Marshall's 
course in the House was in the minds of even the 
Federalist leaders who were out of the country. The 
American Minister at The Hague was as much 
troubled about Marshall as were the Federalist 
politicians at home: "If M[arshall]'s silly declara- 
tion on the inexpediency of the Sedition law does not 
entangle him he may be very useful." 2 But Mur- 
ray was uneasy: "Marshall, I fear, comes in on 
middle ground, and when a man plays the amiable 
in a body like that [House of Representatives] he 
cannot be counted [on], but he will vote generally 
right. I was amiable the first session! It cannot 
last." 3 

Jefferson, of course, was much depressed by the 
Federalist congressional victories, which he felt 
"are extremely to be regretted." He was especially 
irritated by Marshall's election: It "marks a taint 
in that part of the State which I had not expected." 
He was venomous toward Henry for having helped 
Marshall: "His [Henry's] apostacy, must be unac- 
countable to those who do not know all the recesses 
of his heart." 4 

1 Sedgwick to King, July 26, 1799; King, iii, 69. 

2 Murray to J. Q. Adams, June 25, 1799; Letters: Ford, 566. 

3 Murray to J. Q. Adams, July 1, 1799; ib„ 568. 

4 Jefferson to Stuart, May 14, 1799; Works: Ford, ix, 67. 



420 JOHN MARSHALL 

A week later, however, Jefferson decided that the 
Federalist success did not mean a permanent Re- 
publican reverse. Spoils and corruption, he con- 
cluded, were the real cause of the Federalist gain. 
"The Virginia congressional elections have aston- 
ished every one," he informs Tench Coxe. "This 
result has proceeded from accidental combinations 
of circumstances, & not from an unfavorable change 
of sentiment. . . . We are not incorruptible; on the 
contrary, corruption is making sensible tho' silent 
progress. Offices are as acceptable here as elsewhere, 
& whenever a man has cast a longing on them, a 
rottenness begins in his conduct." 1 

Jefferson, with settled and burning hatred, now 
puts his branding-iron on Henry: "As to the effect 
of his name among the people, I have found it crum- 
ble like a dried leaf the moment they become satis- 
fied of his apostacy." 2 

During the weeks which immediately followed his 
election, Marshall was busy reporting to Washing- 
ton on the best men to be appointed as officers in 
the provisional army; and his letters to the Com- 
mander-in-Chief show a wide and careful acquaint- 
ance with Virginians of military training, and a 
delicate judgment of their qualities. 3 

By now the hated Sedition Law was justifying 
the political hydrophobia which it had excited 
among the Republicans. 4 All over the country men 

1 Jefferson to Coxe, May 21, 1799; Works: Ford, ix, 69-70. 2 lb., 70. 

3 For instances of these military letters, see Marshall to Washing- 
ton, June 12, 1799; Washington MSS., Lib. Cong. 

4 See Morison, i, 156-57; also Hudson: Journalism in the United 
States, 160. Party newspapers and speakers to-day make state- 



CANDIDATE FOR CONGRESS 421 

were being indicted and convicted for wholly justi- 
fiable political criticisms, — some of them trivial and 
even amusing, — as well as for false and slanderous 
attacks on public officers. President Adams himself 
had begun to urge these prosecutions. He was par- 
ticularly bitter against the "Aurora," the Republi- 
can organ, which, according to Adams, contained an 
"uninterrupted stream of slander on the American 
government." 1 He thought that the editor ought 
to be expelled from the country. 2 

All this was more fuel to the Republican furnace. 
Wicked and outrageous as were some of these pros- 
ecutions, they were not so extravagant as the 
horrors which Republican politicans declared that 
the Sedition Laws would bring to every fireside. 

During the summer after his election Marshall 
visited his father in Kentucky. Thomas Marshall 
was ill, and his son's toilsome journey was solely for 
the purpose of comforting him; but Jefferson could 
see in it nothing but a political mission. He writes 
to Wilson Cary Nicholas to prepare an answer to 
the States that had opposed the Kentucky and Vir- 
ginia Resolutions; but, says Jefferson, "As to tho 
preparing anything [myself] I must decline it, to 
avoid suspicions (which were pretty strong in some 
quarters on the last occasion) [the Kentucky Resolu- 

ments, as a matter of course, in every political campaign much 
more violent than those for which editors and citizens were fined 
and imprisoned in 1799-1800. (See ib., 315; and see summary from 
the Republican point of view of these prosecutions in Randall, ii, 
416-20.) 

1 Adams to Pickering, July 24, 1799; Works: Adams, ix, 3. 

2 Adams to Pickering, Aug. 1, 1799; ib., 5; and same to same, 
Aug. 3, 1799; ib., 7. 



422 JOHN MARSHALL 

tions]. . . . The visit of the apostle Marshall 1 to 
Kentucky, excite[s] anxiety. However, we doubt 
not that his poisons will be effectually counter- 
worked." 2 

Jefferson's suspicions were groundless. Marshall 
did not even sound public opinion on the subject. 
On his return to Richmond he writes the Secretary 
of State, who was the most active politician of 
Adams's Cabinet, and to whom Marshall freely 
opened his mind on politics, that "a visit to an aged 
& rever'd Father" prevented an earlier answer to a 
letter from Pickering; and, although Marshall has 
much to say, not one word is written of the Ken- 
tucky and Virginia Resolutions. He is obsessed 
with the French question and of the advantage the 
French "party in America" may secure by the im- 
pression that France was not really hostile. "This 
will enable her [France's] party in America to attack 
from very advantageous ground the government of 
the United States." 3 

Now came the public circumstance that made the 
schism in the Federalist Party an open and remorse- 
less feud. The President's militant declaration, 
that he would "never send another minister to 
France without assurances that he will [would] be 
received, respected, and honored as the represent- 

1 Professor Washington, in his edition of Jefferson's Writings, leaves 
a blank after " apostle." Mr. Ford correctly prints Marshall's name as 
it is written in Jefferson's original manuscript copy of the letter. 

2 Jefferson to Wilson Gary Nicholas, Sept. 5, 1799; Works: 
Ford, ix, 79-81. 

3 Marshall to Pickering, Aug. 25, 1799; Pickering MSS., Mass. 
Hist. Soc. Marshall had not yet grasped the deadly significance of 
Jefferson's States' Rights and Nullification maneuver. 



CANDIDATE FOR CONGRESS 423 

ative of a great, free, powerful, and independent 
people," * was perfectly attuned to the warlike spirit 
of the hour. The country rang with approval. The 
Federalist politicians were exultant. 

Thereupon the resourceful Talleyrand wrote the 
Secretary of the French Legation at The Hague to 
intimate to Murray, the American Minister, that the 
French Directory would now receive a minister from 
the United States. 2 Murray hastened the news to 
Adams. 3 It was a frail assurance, indirect, irregular, 
unacknowledged to the world; and from men who 
had insulted us and who would not hesitate to repu- 
diate Murray's statement if their purposes so re- 
quired. Yet the President grasped by the forelock 
this possibility for peace, and, against the emphatic 
protest of his Cabinet, suddenly sent a second com- 
mission to try again for that adjustment which 
Marshall and his associates had failed to secure. It 
was the wisest and most unpopular act of Adams's 
troubled Administration. 

The leading Federalist politicians were enraged. 
Indeed, "the whole [Federalist] party were pro- 
digiously alarmed." 4 They thought it a national 
humiliation. What! said they, kiss the hand that 
had slapped our face! "The new embassy . . . dis- 
gusts most men here," reported Ames from New 

1 Supra. 

2 Talleyrand to Pichon, Aug. 28, and Sept. 28; Am. St. Prs., ii, 
241-42; Murray to Adams, Appendix of Works: Adams, viii. For 
familiar account of Pichon's conferences with Murray, see Murray's 
letters to J. Q. Adams, then U.S. Minister to Berlin, in Letters: Ford, 
445, 473, 475-76; and to Pickering, ib., 464. 

3 "Murray, I guess, wanted to make himself a greater man than he 
is by going to France," was Gallatin's shrewd opinion. Gallatin to 
his wife, March 1, 1799; Adams: Gallatin, 227-28. 4 lb. 



424 JOHN MARSHALL 

England. 1 Cabot confirmed Ames's doleful message 
— "Surprise, indignation, grief, & disgust followed 
each other in swift succession in the breasts of the 
true friends of our country," he advised King. 2 

The Federalist leaders really wanted war with 
France, most of them as a matter of patriotism; 
some, undoubtedly, because war would insure party 
success in the approaching presidential election. 
Upon his return Marshall had prophesied formal 
declaration of hostilities from the Republic of 
France, when news of the dispatches reached Europe; 
and the war Federalists were sorely disappointed 
at the failure of his prediction. "Genl. Marshall 
unfortunately held the decided opinion that France 
would declare war when the Dispatches should 
appear; and T. Sewell with other good men were so 
strongly impressed with the advantage of such a 
declaration by them that they could not be per- 
suaded to relinquish the belief in it — I was aston- 
ished that they should have attributed to the 
French such miserable policy." So wrote the able 
and balanced Cabot. 3 That France refused to adopt 
"such miserable policy" as Marshall had expected 
was sufficiently exasperating to the war Federalists; 
but to meet that country three fourths of the way 
on the road to peace was intolerable. 

"The end [peace] being a bad one all means are 
unwise and indefensible" was the ultra-Federalist 
belief. 4 Adams's second mission was, they said, 

1 Ames to Dwight, Feb. 27, 1799; Works: Ames, i, 252. 

2 Cabot to King, March 10, 1799; King, ii, 551. 

3 Cabot to King, Feb. 16, 1799; ib., 543. 

* Ames to Pickering, March 12, 1799; Works: Ames, i, 253. 



CANDIDATE FOR CONGRESS 425 

party surrender to the Republicans; it was "a policy 
that threatens ... to revive the Jacobin faction in 
our bosom." l Federalist members of Congress 
threatened to resign. "I have sacrificed as much as 
most men ... to support this Govt, and root out 
Democracy, & French principles, but ... I feel it to 
be lost and worse ... I can & will resign if all must 
be given up to France," cried the enraged Tracy. 2 

These "enemies of government" had said all 
along that things could be arranged with France; 
that the X. Y. Z. disclosures were merely a Federal- 
ist plot; and that the army was a wicked and needless 
expense. What answer could the Federalists make 
to these Republican charges now? Adams's new 
French mission, the Federalist chieftains declared, 
was "a measure to make dangers, and to nullify 
resources; to make the navy without object; the 
army an object of popular terror." 3 

And the presidential election was coming on ! To 
hold the situation just as it was might mean Fed- 
eralist victory. Suppose events did develop a for- 
mal declaration of war with France? That would 
make Federalist success more certain. The coun- 
try would not turn out a party in charge of the Gov- 
ernment when cannon were roaring. Even more 
important, an open and avowed conflict with the 
" bloody Republic" would, reasoned the Federalist 
leaders, check the miasmic growth of French revolu- 
tionary ideas among the people. 

1 Ames to Pickering, Oct. 19, 1799; ib., 257. 

2 Uriah Tracy to McHenry, Sept. 2, 1799; Steiner, 417. 

3 Ames to Pickering, Nov. 5, 1799; Works: Ames, i, 260-61. 



426 JOHN MARSHALL 

In short, a declaration of war with France would 
do everything which the Federalists wished and 
hoped for. "Peace [with France] ... is not desired 
as it should not be" * was their opinion of the states- 
manship demanded by the times. And now Adams, 
without one word to the men who reluctantly had 
made him President, 2 had not only prevented a rup- 
ture which would have accomplished every Federal- 
ist purpose, but had delivered his party into the 
hands of the "Jacobins." He had robbed the 
Federalists of their supreme campaign "issue." 
"Peace with France, they think an evil and holding 
out the hope of it another, as it tends to chill the 
public fervor"; 3 and the "public fervor" surely 
needed no further reduction of temperature, for 
Federalist health. 

If Adams did not wish for a formal declaration 
of war, at least he might have let things alone. 
But now! "Government will be weakened by the 
friends it loses and betrayed by those it will gain. 
It will lose . . . the friendship of the sense, and 
worth, and property of the United States, and get 
in exchange the prejudice, vice, and bankruptcy 
of the nation," 4 wrote Ames to Pickering. "In 
Resistance alone there is safety," 5 was Cabot's 

1 Ames to Pickering, March 12, 1799; Works: Ames, i, 254. 

2 "Men of principal influence in the Federal party . . . began to 
entertain serious doubts about his [Adams's] fitness for the station, 
yet . . . they thought it better to indulge their hopes than to listen 
to their fears, [and] . . . determined to support Mr. Adams for the 
Chief Magistracy." ("Public Conduct, etc., John Adams "; Hamil- 
ton: Works: Lodge, vii, 318.) 

3 Ames to Dwight, Feb. 27, 1799; Works: Ames, i, 252. 

4 Ames to Pickering, Nov. 5, 1799; ib., 260. 

5 Cabot to King, March 10, 1799; King, ii, 552. 



CANDIDATE FOR CONGRESS 427 

opinion. "The Jacobin influence is rising, and has 
been ever since the mission to France was deter- 
mined on; ... if a Treaty be made with France their 
[Republican] ascendancy will be sure"; 1 and, after 
that, the deluge. 

The Federalist leaders felt that, even without a 
declaration of hostilities by Congress, they might 
make shift to win the approaching election. For on 
the sea we already were waging war on France, 
while formally at peace with her. Our newborn 
navy was taking French privateers, defeating 
French men-of-war, and retaliating with pike, cut- 
lass, and broadside for the piratical French out- 
rages upon American commerce. 2 As things stood, 
it was certain that this would continue until after the 
election, and with each glorious victory of a Truxton 
or a Hull, National pride and popular enthusiasm 
would mount higher and grow stronger. So the 
Federalist politicians thought that " the only nego- 
tiation compatible with our honor or our safety 
is that begun by Truxton in the capture of the 
L'Insurgente." 3 

Priceless campaign ammunition was this for 
the Federalist political guns. Early in the year the 
bilious but keen-eyed watchman on the ramparts 
of New England Federalism had noted the appear- 
ance of "a little patriotism, and the capture of the 
Insurgente cherishes it." 4 And now Adams's second 

1 Higginson to Pickering, April 16, 1800; Pickering MSS., Mass. 
Hist. Soc, printed in An. RepL, Amer. Hist. Assn., 1896, i, 836. 

2 For an excellent summary of this important episode in our his- 
tory see Allen : Our Naval War with France. 

3 Pickering to King, March 6, 1799; King, ii, 548-49. 

4 Ames to Pickering, March 12, 1799; Works: Ames, i, 254. 



428 JOHN MARSHALL 

mission might spoil everything. "The Jacobins will 
rise in consequence of this blunder," 1 was the dole- 
ful prophecy. Indeed, it was already in fulfillment 
even with the utterance: "Already the Jacobins 
raise their disgraced heads from the mire of con- 
tempt!" 2 The "country gentlemen" were the 
hands as the business interests were the brain and 
heart of the Federalist Party; "the President de- 
stroyed their influence, and . . . left them prostrate 
before their vindictive adversaries." 3 

The Republicans were overjoyed. Adams had 
reversed himself, eaten his own words, confessed 
the hypocrisy of the "infamous X. Y. Z. plot." 
"This renders their [Federalists'] efforts for war 
desperate, & silences all further denials of the sin- 
cerity of the French government," gleefully wrote 
Jefferson. 4 

Marshall alone of the commanding Federalists, 
approved Adams's action. "I presume it will afford 
you satisfaction to know that a measure which 
excited so much agitation here, has met the appro- 
bation of so good a judge as Mr. Marshall," Lee 
reported to the President. 5 Marshall's support 
cheered the harried Chief Executive. "Esteeming 
very highly the opinion and character of your friend 
General Marshall, I thank you for inclosing his 
letter," responded Adams. 6 

1 Ames to Dwight, Oct. 20, 1799; ib., 259. 

2 Ames to Pickering, Oct. 19, 1799; ib., 257. 

3 Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 403. 

4 Jefferson to Pendleton, Feb. 19, 1799; Works: Ford, ix, 54. 
6 Lee to Adams, March 14, 1799; Works: Adams, viii, 628. 

6 Adams to Lee, March 29, 1799; ib., 629. 



CANDIDATE FOR CONGRESS 429 

The President had done still worse. Auctioneer 
John Fries, a militia captain, had headed an armed 
mob in resistance to the National officers who were 
levying the National direct tax on the houses and 
lands of the farmers of eastern Pennsylvania. He 
had been finally taken prisoner, tried, and con- 
victed of sedition and treason, and sentenced to 
death. Against the unanimous written advice of 
his Cabinet, formally tendered, 1 the President par- 
doned the "traitor" and "his fellow criminals." 2 
And this clemency was granted at the plea of 
McKean, the arch-" Jacobin " of Pennsylvania, 3 
without even consulting the judges of the courts in 
which they were twice tried and convicted. 4 

What was this, asked the Federalist leaders in 
dazed and angry amazement! Paralyze the arm of 
the law! Unloose the fingers of outraged authority 
from the guilty throat which Justice had clutched ! 
What was to become of "law and order" when the 
Nation's head thus sanctioned resistance to both? 5 
In his charge to the Federal Grand Jury, April 11, 
1799, Justice Iredell declared that if "traitors" are 
not punished "anarchy will ride triumphant and all 
lovers of order, decency, truth & justice will be 
trampled under foot." 6 

1 Cabinet to President, Sept. 7, 1799; Works: Adams, ix, 21-23; and 
same to same, May 20, 1799; ib., 59-60. 

2 Adams to Lee, May 21, 1800; ib., 60. For account of Fries's Re- 
bellion see McMaster, ii, 435-39. Also Hildreth, v, 313. 

3 Pickering to Cabot, June 15, 1800; Lodge: Cabot, 275. 

4 "Public Conduct, etc., John Adams"; Hamilton: Works: Lodge, 
vii, 351-55; and see Gibbs, ii, 360-62. 

5 See Hamilton's arraignment of the Fries pardon in " Public Con- 
duct, etc., John Adams"; Works: Lodge, vii, 351-55. 

6 McRee, ii, 551. 



430 JOHN MARSHALL 

How, now, could the Federalists repel Republican 
assaults on this direct tax? How, now, could they 
reply to the Republican attacks upon the army to 
support which the tax was provided! In pardoning 
Fries, Adams had admitted everything which the 
hated Jefferson had said against both tax and army. 1 
If Adams was right in pardoning Fries, then Wash- 
ington was wrong in suppressing the Whiskey 
Rebellion. The whole Federalist system was aban- 
doned. 2 The very roots of the Federalist philosophy 
of government and administration were torn from 
their none too firm hold upon the scanty soil which 
Federalist statesmen had laboriously gathered for 
their nourishment. And why had Adams done this? 

1 " The Aurora, in analyzing the reasons upon which Fries, Hainy, 
and Getman have been pardoned brings the President forward as, 
by this act, condemning: 1. The tax law which gave rise to the in- 
surrection; 2. The conduct of the officers appointed to collect the 
tax; 3. The marshal; 4. The witnesses on the part of the United 
States; 5. The juries who tried the prisoners; 6. The court, both 
in their personal conduct and in their judicial decisions. In short, 
every individual who has had any part in passing the law — in 
endeavoring to execute it, or in bringing to just punishment those 
who have treasonably violated it." {Gazette of the United States, re- 
viewing bitterly the comment of the Republican organ on Adams's 
pardon of Fries.) 

2 Many Federalists regretted that Fries was not executed by court- 
martial. "I suppose military execution was impracticable, but if some 
executions are not had, of the most notorious offenders — I shall re- 
gret the events of lenity in '94 & '99 — as giving a fatal stroke to Gov- 
ernment. . . . Undue mercy to villains, is cruelty to all the good & vir- 
tuous. Our people in this State are perfectly astonished, that cost 
must continually be incurred for insurrections in Pennsylvania for 
which they say they are taxed & yet no punishment is inflicted on the 
offenders. I am fatigued & mortified that our Govt, which is weak at 
best, would withhold any of its strength when all its energies should 
be doubled." (Uriah Tracy to McHenry, on Fries, May 6, 1799; 
Steiner, 436.) And "I am in fear that something will occur to release 
that fellow from merited Death." (Same to same, May 20, 1790; ib.) 



CANDIDATE FOR CONGRESS 431 

Because, said the Federalist politicians, it was popu- 
lar in Pennsylvania; * that was the President's motive 
— the same that moved him to send the new mis- 
sion to France. 2 

Bending under heavy burdens of state, harassed 
by the politicians, Adams was enduring a private 
pain sharper than his public cares. His wife, the 
incomparable Abigail, was in Massachusetts and 
seriously ill. The President had left her to meet 
his Cabinet and dispatch the second mission to 
France. That done, he hastened back to the bed- 
side of his sick wife. But the politicians made no 
allowances. Adams's absence "from the seat of 
government ... is a source of much disgust," 
chronicles the ardent Troup. "It . . . has the air 
of an abdication." 3 A month later he records that 
the President "still continues at Braintree, 4 and 
the government, like Pope's wounded snake, drags 
its slow length along." 5 

Such was the condition of the country and the 
state of political parties when Marshall took his 
seat in Congress. F'or the Federalists, the House was 
a very "cave of the winds," with confusion, uncer- 
tainty, suspicion, anger, and all the disintegrating 
passions blowing this way and that. But the Re- 
publicans were a compact, disciplined, determined 
body full of spirit and purpose. 

1 "Public Conduct, etc., John Adams"; Hamilton: Works: Lodge, 
vii, 351-55. 

2 Ames to Pickering, Nov. 23, 1799; Works: Ames, i, 270. 

3 Troup to King, May 6, 1799; King, iii, 14. 

4 Adams's home, now Quincy, Massachusetts. 
6 Troup to King, June 5, 1799; King, iii, 34. 



CHAPTER XI 

INDEPENDENCE IN CONGRESS 

The Constitution is not designed to secure the rights of the people of Europe 
or Asia or to direct proceedings against criminals throughout the universe. 
(Marshall.) 

The whole world is in arms and no rights are respected but those that are 
maintained by force. (Marshall.) 

Marshall is disposed to express great respect for the sovereign people and to 
quote their expressions as evidence of truth. (Theodore Sedgwick.) 

"I have been much in Company with General 
Marshall since we arrived in this City. He possesses 
great powers and has much dexterity in the applica- 
tion of them. He is highly & deservedly respected 
by the friends of Government [Federalists] from the 
South. In short, we can do nothing without him. 
I believe his intentions are perfectly honorable, & 
yet I do believe he would have been a more decided 
man had his education been on the other side of the 
Delaware, and he the immediate representative of 
that country." * 

So wrote the Speaker of the House of Representa- 
tives after three weeks of association with the Vir- 
ginia member whom he had been carefully studying. 
After another month of Federalist scrutiny, Cabot 
agreed with Speaker Sedgwick as to Marshall's 
qualities. 

"In Congress, you see Genl. M.[arshall] is a 
leader. He is I think a virtuous & certainly an able 
man; but you see in him the faults of a Virginian. 
He thinks too much of that State, & he expects the 

1 Sedgwick to King, Dec. 29, 1799; King, iii, 163. 



INDEPENDENCE IN CONGRESS 433 

world will be governed according to the Rules of 
Logic. I have seen such men often become excellent 
legislators after experience has cured their errors. 
I hope it will prove so with Genl. M.[arshall], who 
seems calculated to act a great part." x 

The first session of the Sixth Congress convened 
in Philadelphia on December 2, 1799. Marshall was 
appointed a member of the joint committee of the 
Senate and the House to wait upon the President 
and inform him that Congress was in session. 2 

The next day Adams delivered his speech to the 
Senators and Representatives. The subject which 
for the moment now inflamed the minds of the mem- 
bers of the President's party was Adams's second 
French mission. Marshall, of all men, had most 
reason to resent any new attempt to try once more 
where he had failed, and to endeavor again to deal 
with the men who had insulted America and spun 
about our representatives a network of corrupt in- 
trigue. But if Marshall felt any personal humilia- 
tion, he put it beneath his feet and, as we have seen, 
approved the Ellsworth mission. "The southern 
federalists have of course been induced [by Marshall] 
to vindicate the mission, as a sincere, honest, and 
politic measure," wrote Wolcott to Ames. 3 

Who should prepare the answer of the House to 
the President's speech? Who best could perform the 
difficult task of framing a respectful reply which 
would support the President and yet not offend the 
rebellious Federalists in Congress? Marshall was 

1 Cabot to King, Jan. 20, 1800; ib., 184. 

2 Annals, 6th Cong., 1st Sess., 187. 

* Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. 



434 JOHN MARSHALL 

selected for this delicate work. "Mr. Marshall, from 
the committee appointed to draught an Address in 
answer to the Speech of the President of the United 
States . . . reported same." * Although written in 
admirable temper, Marshall's address failed to 
please; the result was pallid. 

"Considering the state of the House, it was neces- 
sary and proper that the answer to the speech 
should be prepared by Mr. Marshall," testifies Wol- 
cott. "He has had a hard task to perform, and you 
have seen how it has been executed. The object was 
to unite all opinions, at least of the federalists; it 
was of course necessary to appear to approve the 
mission, and yet to express the approbation in such 
terms as when critically analyzed would amount 
to no approbation at all. No one individual was 
really satisfied; all were unwilling to encounter 
the danger and heat which a debate would pro- 
duce and the address passed with silent dissent; the 
President doubtless understood the intention, and 
in his response has expressed his sense of the du- 
bious compliment in terms inimitably obscure." 2 
Levin Powell, a Federalist Representative from Vir- 
ginia, wrote to his brother: "There were members 
on both sides that disliked that part of it [Mar- 
shall's address] where he spoke of the Mission to 
France." 3 

The mingled depression, excitement, and resent- 
ment among Marshall's colleagues must have been 

1 Annals, 6th Cong. 1st Sess., 194. The speech as reported passed 
with little debate. 

2 Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. And see McMas- 
ter, ii, 452. 

3 Levin Powell to Major Burr Powell, Dec. 11, 1799; Branch His- 
torical Papers, ii, 232. 



INDEPENDENCE IN CONGRESS 435 

great indeed to have caused them thus to look upon 
his first performance in the House; for the address, 
which, even now, is good reading, is a strong and 
forthright utterance. While, with polite agreement, 
gliding over the controverted question of the mis- 
sion, Marshall's speech is particularly virile when 
dealing with domestic politics. In coupling Fries 's 
Pennsylvania insurrection with the Kentucky and 
Virginia Resolutions Marshall displayed as clever 
political dexterity as even Jefferson himself. 

The address enumerates the many things for 
which Americans ought to thank "the benevolent 
Deity," and laments "that any portion of the peo- 
ple . . . should permit themselves, amid such numer- 
ous blessings, to be seduced by . . . designing men 
into an open resistance to the laws of the United 
States. . . . Under a Constitution where the public 
burdens can only be imposed by the people them- 
selves, for their own benefit, and to promote their 
own objects, a hope might well have been indulged 
that the general interest would have been too well 
understood, and the general welfare too highly prized, 
to have produced in any of our citizens a disposition 
to hazard so much felicity, by the criminal effort 
of a part, to oppose with lawless violence the will of 
the whole." l 

While it augured well that the courts and militia 
cooperated with "the military force of the nation" 
in "restoring order and submission to the laws," 
still, this only showed the necessity of Adams's 
"recommendation" that "the judiciary system" 

1 Annals, 6th Cong., 1st Sess., 194. 



436 JOHN MARSHALL 

should be extended. As to the new French mission, 
the address "approves the pacific and humane pol- 
icy" which met, by the appointment of new envoys, 
"the first indications on the part of the French 
Republic" of willingness to negotiate; and "offers 
up fervent prayers to the Supreme Ruler of the 
Universe for the success of their embassy." 

Marshall declares "the present period critical and 
momentous. The important changes which are 
occurring, the new and great events which are every 
hour preparing . . . the spirit of war . . . prevalent 
in almost every nation . . . demonstrate" the need 
of providing "means of self-defense." To neglect 
this duty from " love of ease or other considerations " 
would be "criminal and fatal carelessness." No one 
could tell how the new mission would terminate: 
"It depends not on America alone. The most pa- 
cific temper will not ensure peace." Preparation for 
"national defense . . . is an . . . obvious duty. Ex- 
perience the parent of wisdom . . . has established 
the truth . . . that . . . nothing short of the power 
of repelling aggression will" save us from "war or 
national degradation." * 

Gregg of Pennsylvania moved to strike out the 
italicized words in Marshall's address to the Presi- 
dent, but after a short debate the motion was de- 
feated without roll-call. 2 

Wolcott gives us a clear analysis of the political 
situation and of Marshall's place and power in it at 
this particular moment: "The federal party is com- 
posed of the old members who were generally re- 

1 Annals, 6th Cong., 1st Sess., 194-97. 2 lb., 194. 



INDEPENDENCE IN CONGRESS 437 

elected in the northern, with new members from the 
southern states. New York has sent an anti-federal 
majority; Pennsylvania has done the same; opposi- 
tion principles are gaining ground in New Jersey and 
Maryland, and in the present Congress, the votes 
of these states will be fluctuating and undecided." 

Nothing shows more clearly the intimate gossip 
of the time than the similarity of Wolcott's and 
Cabot's language in describing Marshall. "A num- 
ber of distinguished men," continues Wolcott, "ap- 
pear from the southward, who are not pledged by any 
act to support the system of the last Congress ; these 
men will pay great respect to the opinions of General 
Marshall; he is doubtless a man of virtue and dis- 
tinguished talents, but he will think much of the 
State of Virginia, and is too much disposed to govern 
the world according to rules of logic; he will read and 
expound the constitution as if it were a penal statute, 
and will sometimes be embarrassed with doubts of 
which his friends will not perceive the importance." l 

Marshall headed the committee to inquire of the 
President when he would receive the address of 
the House, and on December 10, "Mr. Speaker, at- 
tended by the members present, proceeded to the 
President's house, to present him their Address in 
answer to his Speech." 2 A doleful procession the 
hostile, despondent, and irritated Representatives 
made as they trudged along Philadelphia's streets 
to greet the equally hostile and exasperated Chief 
Magistrate. 

1 Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. 

s Annals, 6th Cong., 1st Sess., 198. 



438 JOHN MARSHALL 

Presidential politics was much more on the minds 
of the members of Congress than was the legisla- 
tion needed by the country. Most of the measures 
and practically all the debates of this remarkable 
session were shaped and colored by the approaching 
contest between the Federalists and Republicans 
and, personally, between Jefferson and Adams. 
Without bearing this fact in mind the proceedings of 
this session cannot be correctly understood. A mere 
reading of the maze of resolutions, motions, and 
debates printed in the "Annals" leaves one bewil- 
dered. The principal topic of conversation was, of 
course, the impending presidential election. Hamil- 
ton's faction of extreme Federalists had been dis- 
satisfied with Adams from the beginning. Marshall 
writes his brother "in confidence " of the plots these 
busy politicians were concocting. 

"I can tell you in confidence," writes Marshall, 
"that the situation of our affairs with respect to 
domestic quiet is much more critical than I had 
conjectured. The eastern people are very much 
dissatisfied with the President on account of the 
late [second] Mission to France. They are strongly 
disposed to desert him & push some other candidate. 
King or Ellsworth with one of the Pinckneys — 
most probably the General, are thought of. 

"If they are deter 'd from doing this by the fear 
that the attempt might elect Jefferson I think it not 
improbable that they will vote generally for Adams 
& Pinckney so as to give the latter gentleman the best 
chance if he gets the Southern vote to be President. 

"Perhaps this ill humor may evaporate before 



INDEPENDENCE IN CONGRESS 439 

the election comes on — but at present it wears a 
very serious aspect. This circumstance is rendered 
the more unpleasant by the state of our finances. 
The impost received this year has been less produc- 
tive than usual & it will be impossible to continue 
the present armament without another loan. Had the 
impost produced the sum to which it was calculated, 
a loan would have been unavoidable. 

"This difficulty ought to have been foreseen when 
it was determined to execute the law for raising the 
army. It is now conceiv'd that we cannot at the 
present stage of our negotiation with France change 
the defensive position we have taken without much 
hazard. 

"In addition to this many influential characters 
not only contend that the army ought not now to be 
disbanded but that it ought to be continued so long 
as the war in Europe shall last. I am apprehensive 
that our people would receive with very ill temper 
a system which should keep up an army of observa- 
tion at the expense of the annual addition of five 
millions to our debt. The effect of it wou'd most 
probably be that the hands which hold the reins 
wou'd be entirely chang'd. You perceive the per- 
plexities attending our situation. 

"In addition to this there are such different views 
with respect to the future, such a rancorous malig- 
nity of temper among the democrats, 1 such [an ap]- 

1 The Federalists called the Republicans "Democrats," "Jacob- 
ins," etc., as terms of contempt. The Republicans bitterly resented 
the appellation. The word "Democrat" was not adopted as the for- 
mal name of a political party until the nomination for the Presidency 
of Andrew Jackson, who had been Jefferson's determined enemy. 



440 JOHN MARSHALL 

parent disposition — (if the Aurora be the index of 
the [mind of] those who support it) to propel us to a 
war with B[ritain] & to enfold us within the embrace 
of Fran[ce], [s]uch a detestation & fear of France 
among others [that I] look forward with more appre- 
hension than I have ever done to the future political 
events of our country." 1 

On December 18 a rumor of the death of Wash- 
ington reached the Capital. Marshall notified the 
House. His grief was so profound that even the dry 
and unemotional words of the formal congressional 
reports express it. "Mr. Marshall," says the 
"Annals" of Congress, "in a voice that bespoke the 
anguish of his mind, and a countenance expressive 
of the deepest regret, rose, and delivered himself as 
follows : — 

"Mr. Speaker: Information has just been received, 
that our illustrious fellow-citizen, the Commander- 
in-Chief of the American Army, and the late Presi- 
dent of the United States, is no more! 

"Though this distressing intelligence is not cer- 
tain, there is too much reason to believe its truth. 
After receiving information of this national calam- 
ity, so heavy and so afflicting, the House of Repre- 
sentatives can be but ill fitted for public business. 
I move, therefore, they adjourn." 2 

The next day the news was confirmed, and Mar- 
shall thus addressed the House : — 

"Mr. Speaker: The melancholy event which was 

1 Marshall to James M. Marshall, Philadelphia, Dec. 16, 1799; 

MS. 

2 Annals, 6th Cong., 1st Sess., 203. 



INDEPENDENCE IN CONGRESS 441 

yesterday announced with doubt, has been rendered 
but too certain. 

"Our Washington is no more! The Hero, the 
Sage, and the Patriot of America — the man on 
whom in times of danger every eye was turned and 
all hopes were placed — lives now only in his own 
great actions, and in the hearts of an affectionate 
and afflicted people. 

"If, sir, it has even not been usual openly to tes- 
tify respect for the memory of those whom Heaven 
had selected as its instrument for dispensing good to 
men, yet such has been the uncommon worth, and 
such the extraordinary incidents, which have marked 
the life of him whose loss we all deplore, that the 
American Nation, 1 impelled by the same feelings, 
would call with one voice for a public manifestation 
of that sorrow which is so deep and so universal. 

"More than any other individual, and as much 
as to one individual was possible, has he contributed 
to found this our wide-spread empire, 2 and to 
give to the Western World its independence and its 
freedom. 

"Having effected the great object for which he 
was placed at the head of our armies, we have seen 
him converting the sword into the plough-share, and 
voluntarily sinking the soldier in the citizen. 

"When the debility of our federal system had 
become manifest, and the bonds which connected 

1 Marshall appears to have been the first to use the expression "the 
American Nation." 

2 The word "empire" as describing the United States was employed 
by all public men of the time. Washington and Jefferson frequently 
spoke of "our empire." 



442 JOHN MARSHALL 

the parts of this vast continent were dissolving, we 
have seen him the Chief of those patriots who 
formed for us a Constitution, which, by preserving 
the Union, will, I trust, substantiate and perpetu- 
ate those blessings our Revolution had promised to 
bestow. 

"In obedience to the general voice of his country, 
calling on him to preside over a great people, we 
have seen him once more quit the retirement he 
loved, and in a season more stormy and tempestuous 
than war itself, with calm and wise determination, 
pursue the true interests of the Nation, and contrib- 
ute, more than any other could contribute, to the 
establishment of that system of policy which will, 
I trust, yet preserve our peace, our honor and our 
independence. 

"Having been twice unanimously chosen the 
Chief Magistrate of a free people, we see him, at a 
time when his re-election with the universal suffrage 
could not have been doubted, affording to the world 
a rare instance of moderation, by withdrawing from 
his high station to the peaceful walks of private life. 
However the public confidence may change, and the 
public affections fluctuate with respect to others, 
yet with respect to him they have in war and in 
peace, in public and in private life, been as steady 
as his own firm mind, and as constant as his own 
exalted virtues. 

"Let us, then, Mr. Speaker, pay the last tribute 
of respect and affection to our departed friend — 
let the Grand Council of the Nation display those 
sentiments which the Nation feels. For this purpose 



INDEPENDENCE IN CONGRESS 443 

I hold in my hand some resolutions which I will take 
the liberty to offer to the House." x 

The resolutions offered by Marshall declared 
that: — 

"The House of Representatives of the United 
States, having received intelligence of the death of 
their highly valued fellow-citizen, George Wash- 
ington, General of the Armies of the United States, 
and sharing the universal grief this distressing 
event must produce, unanimously resolve: — 

"1. That this House will wait on the President 
of the United States, in condolence of this national 
calamity. 

"2. That the Speaker's chair be shrouded with 
black, and that the members and officers of the 
House wear mourning during the session. 

"3. That a joint committee of both Houses be 
appointed to report measures suitable to the occa- 
sion, and expressive of the profound sorrow with 
which Congress is penetrated on the loss of a citi- 
zen, first in war, first in peace, and first in the hearts 
of his countrymen." 2 

Thus it came about that the designation of Wash- 
ington as "First in war, first in peace, and first in 
the hearts of his countrymen" was attributed to 
Marshall. But Marshall's colleague, Henry Lee, 
was the author of these words. Marshall's refusal to 
allow history to give him the credit for this famous 
description is characteristic. He might easily have 
accepted that honor. Indeed, he found it difficult to 
make the public believe that he did not originate 

1 Annals, 6th Cong., 1st. Sess., 203-04. 2 lb., 204. 



444 JOHN MARSHALL 

this celebrated phraseology. He presented the 
resolutions; they stand on the record in Marshall's 
name; and, for a long time, the world insisted on 
ascribing them to him. 

In a last effort to make history place the lau- 
rels on General Lee, where they belong, Marshall, 
three years before his death, wrote the exact 
facts : — 

"As the stage passed through Philadelphia," says 
Marshall, "some passenger mentioned to a friend 
he saw in the street the death of General Washing- 
ton. The report flew to the hall of Congress, and I 
was asked to move an adjournment. I did so. 

"General Lee was not at the time in the House. 
On receiving the intelligence which he did on the 
first arrival of the stage, he retired to his room and 
prepared the resolutions which were adopted with 
the intention of offering them himself. 

"But the House of Representatives had voted on 
my motion, and it was expected by all that I on the 
next day announce the lamentable event and pro- 
pose resolutions adapted to the occasion. 

"General Lee immediately called on me and 
showed me his resolutions. He said it had now be- 
come improper for him to offer them, and wished me 
to take them. As I had not written anything myself 
and was pleased with his resolutions which I entirely 
approved, I told him I would offer them the next 
day when I should state to the House of Represent- 
atives the confirmation of the melancholy intelli- 
gence received the preceding day. I did so. 

" You will see the fact stated in a note to the pref- 



INDEPENDENCE IN CONGRESS 445 

ace of the Life of Washington on p. [441] v. [2] and 
again in a note to the 5th vol. p. 765. Whenever the 
subject has been mentioned in my presence," Mar- 
shall adds in a postscript, "I have invariably stated 
that the resolution was drawn by General Lee and 
have referred to these notes in the Life of Washing- 
ton." 1 

During the first session Marshall was incessantly 
active, although his work was done with such ease 
that he gave to his colleagues the impression of in- 
dolence. Few questions came before the House on 
which he did not take the floor; and none, appar- 
ently, about which he did not freely speak his mind 
in private conversation. The interminable roll-calls 
of the first session show that Marshall failed to vote 
only six times. 2 His name is prominent throughout 
the records of the session. For example, the Repub- 
licans moved to amend the army laws so that enlist- 
ments should not exempt non-commissioned officers 
and privates from imprisonment for debt. Marshall 
spoke against the motion, which was defeated. 3 He 
was appointed chairman of a special committee to 
bring in a bill for removing military forces from elec- 
tion places and "preventing their interference in 
elections." Marshall drew this measure, reported 

1 Marshall to Charles W. Hannan, of Baltimore, Md., March 29, 
1832; MS., N.Y. Pub. Lib.; also Marshall, ii, 441. 

2 These were: On the bill to enable the President to borrow money 
for the public (Annals, 6th Cong., 1st Sess., 632); a bill for the re- 
lief of Rhode Island College (ib., 643); a salt duty bill (ib., 667); a 
motion to postpone the bill concerning the payment of admirals (ib., 
678); a bill on the slave trade (ib., 699-700); a bill for the additional 
taxation of sugar (ib., 705). 

3 lb., 521-22. 



446 JOHN MARSHALL 

it to the House, where it passed, only to be defeated 
in the Senate. 1 

Early in the session Marshall was appointed 
chairman of the committee to report upon the ces- 
sion by Connecticut to the United States of that 
priceless domain known as the Western Reserve. 
He presented the committee report recommending 
the acceptance of the lands and introduced the bill 
setting out the terms upon which they could be 
taken over. 2 After much debate, which Marshall 
led, Gallatin fighting by his side, the bill was passed 
by a heavy majority. 3 

Marshall's vote against abrogating the power of 
the Governor of the Territory of the Mississippi to 
prorogue the Legislature; 4 his vote for the resolu- 
tion that the impertinence of a couple of young 
officers to John Randolph at the theater did not 
call "for the interposition of this House," on the 
ground of a breach of its privileges; 5 his vote 
against that part of the Marine Corps Bill which 
provided that any officer, on the testimony of two 

1 Annals, 6\h Cong., 1st Sess., Home, 522-23,527,626; Senate, 151. 

2 lb., 633-34. 

3 lb., 662. See ?*&., Appendix n, 495, 496. Thus Marshall was the 
author of the law under which the great "Western Reserve" was 
secured to the United States. The bill was strenuously resisted on the 
ground that Connecticut had no right or title to this extensive and 
valuable territory. 

4 lb., 532. On this vote the A urora said: "When we hear such char- 
acters as General Lee calling it innovation and speculation to withhold 
from the Executive magistrate the dangerous and unrepublican power 
of proroguing and dissolving a legislature at his pleasure, what must be 
the course of our reflections? When we see men like General Marshall 
voting for such a principle in a Government of a portion of the Ameri- 
can people is there no cause for alarm?" (Aurora, March 20, 1800.) 

6 Annals, 6th Cong., 1st Sess., 504-06. 



IXDEPEXDEXCE IN CONGRESS 447 

witnesses, should be cashiered and incapacitated 
forever from military service for refusing to help 
arrest any member of the service who, while on 
shore, offended against the person or property of any 
citizen, 1 are fair examples of the level good sense 
with which Marshall invariably voted. 

On the Marine Corps Bill a debate arose so sud- 
denly and sharply that the reporter could not record 
it. Marshall's part in this encounter reveals his 
military bent of mind, the influence of his army 
experience, and his readiness in controversy, no less 
than his unemotional sanity and his disdain of pop- 
ular favor if it could be secured only by sacrificing 
sound judgment. Marshall strenuously objected to 
subjecting the Marine Corps officers to trial by jury 
in the civil courts; he insisted that courts-martial 
were the only tribunals that could properly pass on 
their offenses. Thereupon, young John Randolph of 
Roanoke, whose pose at this particular time was ex- 
travagant hostility to everything military, promptly 
attacked him. The incident is thus described by one 
who witnessed the encounter "which was incident- 
ally and unexpectedly started and as suddenly and 
warmly debated": — 

"Your representative, Mr. Marshall, was the 
principal advocate for letting the power remain with 
courts martial and for withholding it from the courts 
of law. In the course of the debate there was some 
warmth and personality between him and Mr. 
Randolph, in consequence of the latter charging the 
former with adopting opinions, and using argu- 

1 Annals, 6th Cong., 1st Sess., 623-24. 



448 JOHN MARSHALL 

merits, which went to sap the mode of trial by 
jury. 

"Mr. Marshall, with leave, rose a third time, and 
exerted himself to repel and invalidate the deduc- 
tions of Mr. Randolph, who also obtained permis- 
sion, and defended the inference he had drawn, by 
stating that Mr. Marshall, in the affair of Robbins, 1 
had strenuously argued against the jurisdiction of 
the American courts, and had contended that it was 
altogether an Executive business; that in the present 
instance he strongly contended that the business 
ought not to be left with the civil tribunals, but that 
it ought to be transferred to military tribunals, and 
thus the trial by jury would be lessened and frit- 
tered away, and insensibly sapped, at one time by 
transferring the power to the Executive, and at 
another to the military departments; and in other 
ways, as occasions might present themselves. The 
debate happened so unexpectedly that the short- 
hand man did not take it down, although its man- 
ner, its matter, and its tendency, made it more de- 
serving of preservation, than most that have taken 
place during the session." 2 

Marshall's leadership in the fight of the Vir- 
ginia Revolutionary officers for land grants from 
the National Government, strongly resisted by 
Gallatin and other Republican leaders, illustrates 
his unfailing support of his old comrades. Notwith- 

1 See infra, 458 et seq. 

2 "Copy of a letter from a gentleman in Philadelphia, to his friend 
in Richmond, dated 13th March, 1800," printed in Virginia Gazette 
and Petersburg Intelligencer, April 1, 1800. 



INDEPENDENCE IN CONGRESS 449 

standing the Republican opposition, he was victo- 
rious by a vote of more than two to one. 1 

But Marshall voted to rebuke a petition of "free 
men of color" to revive the slave-trade laws, the 
fugitive from justice laws, and to take "such meas- 
ures as shall in due course" free the slaves. 2 The 
debate over this resolution is important, not only 
as explaining the vote of Marshall, who came from 
Virginia and was himself a slaveholder, as were 
Washington and Jefferson, but also as showing the 
mind of the country on slavery at that particular 
time. 

Marshall's colleague, General Lee, said that the 
petition "contained sentiments . . . highly improper 
... to encourage." 3 John Rutledge of South Caro- 
lina exclaimed: "They now tell the House these 
people are in slavery — I thank God they are ! if 
they were not, dreadful would be the consequences. 
. . . Some of the states would never have adopted 
the Federal form of government if it had not been 
secured to them that Congress never would legis- 
late on the subject of slavery." 4 

Harrison Gray Otis of Massachusetts was much 
disgusted by the resolution, whose signers "were 
incapable of writing their names or of reading the 
petitions"; he "thought those who did not possess 
that species of property [slaves] had better leave the 
regulation of it to those who were cursed with it." 
John Brown of Rhode Island "considered [slaves] 
as much personal property as a farm or a ship. . . . 

1 Annals, 6th Cong., 1st Sess., 668-69. 

2 lb., 229. 3 lb., 231. 4 lb., 230-32. 



450 JOHN MARSHALL 

We want money; we want a navy; we ought there- 
fore to use the means to obtain it. . . . Why should 
we see Great Britain getting all the slave trade to 
themselves; why may not our country be enriched 
by that lucrative traffic?" * Gabriel Christie of 
Maryland hoped the petition would "go under the 
table instead of upon it." 2 Mr. Jones of Georgia 
thought that the slaves "have been immensely bene- 
fited by coming amongst us." 3 

Finally, after two days of debate, in which the 
cause of freedom for the blacks was almost unsup- 
ported, Samuel Goode of Virginia moved: "That the 
parts of the said petition which invite Congress to 
legislate upon subjects from which the General Gov- 
ernment is precluded by the Constitution have a 
tendency to create disquiet and jealousy, and ought 
therefore to receive the pointed disapprobation of 
this House." 4 On this motion, every member but 
one, including John Marshall, voted aye. George 
Thacher, a Congregationalist preacher from Massa- 
chusetts, alone voted nay. 5 Such, in general, and 
in spite of numerous humanitarian efforts against 
slavery, was American sentiment on that subject at 
the dawn of the nineteenth century. 6 

Five subjects of critical and historic importance 
came before the session: the Federalists' Disputed 
Elections Bill; the Republican attack on the pro- 

1 Annals, 6th Cong., 1st Sess., 233. 2 lb., 234. 

3 lb., 235. 4 lb., 240. 6 lb., 245. 

6 Concerning a similar effort in 1790, Washington wrote: "The 
memorial of the Quakers (and a very malapropos one it was) has at 
length been put to sleep, and will scarcely awake before the year 
1808." (Washington to Stuart, March 28, 1790; Writings: Ford, xi, 
474.) 



INDEPENDENCE IN CONGRESS 451 

visional army raised for the probable emergency of 
war with France ; the Republican attack on the Ex- 
ecutive power in the Jonathan Robins case; the Re- 
publican onslaught upon the Alien and Sedition 
Laws; and the National Bankruptcy Bill. In each 
of these Marshall took a leading and determining 
part. 

Early in the session (January 23) the Republicans 
brought up the vexed question of the Sedition Law. 
A resolution to repeal the obnoxious section of this 
measure was presented on January 29, and after a 
hot debate was adopted by the close vote of 50 to 
48. Marshall voted for the repeal and against his 
own party. * Had he voted with his party, the Repub- 
lican attack would have failed. But no pressure of 
party regularity could influence Marshall against 
his convictions, no crack of the party whip could 
frighten him. 

Considering the white heat of partisan feeling at 
the time, and especially on the subject of the Alien 
and Sedition Laws; considering, too, the fact that 
these offensive acts were Administration measures; 
and taking into account the prominence as a Fed- 
eralist leader which Marshall had now achieved, his 
vote against the reprobated section of the Sedition 
Law was a supreme act of independence of political 
ties and party discipline. He had been and still was 
the only Federalist to disapprove, openly, the Alien 
and Sedition Laws. 2 "To make a little saving for 
our friend Marshall's address," Chief Justice Ells- 

1 Annals, 6th Cong., 1st Sess., Resolution and debate, ii, 404-19, 

2 Bassett, 260. 



452 JOHN MARSHALL 

worth sarcastically suggested that, in case of the re- 
peal of the Sedition Law, "the preamble . . . should 
read thus: 'Whereas the increasing danger and de- 
pravity of the present time require that the law 
against seditious practices should be restored to its 
full rigor, therefore,' etc." * 

From the point of view of its probable effect on 
Marshall's political fortunes, his vote appeared to 
spell his destruction, for it practically left him outside 
of either party. He abhorred the doctrine of State 
Sovereignty which Jefferson now was making the 
rallying-point of the Republican Party; he believed, 
quite as fervently as had Washington himself, that 
the principle of Nationality alone could save the 
Republic. So Marshall could have no hopes of any 
possible future political advancement through the 
Republican Party. 

On the other hand, his vote against his own party 
on its principal measure killed Marshall's future as 
a Federalist in the opinion of all the politicians of his 
time, both Federal and Republican. 2 And we may 
be certain that Marshall saw this even more clearly 
than did the politicians, just as he saw most things 
more clearly than most men. 

But if Marshall's vote on the Sedition Law was 
an act of insubordination, his action on the Disputed 
Elections Bill was nothing short of party treason. 
This next to the last great blunder of the Federalists 
was in reality a high-handed attempt to control 
the coming presidential election, regardless of the 

1 Ellsworth to Pickering, Dec. 12, 1798; Flanders, ii, 193. 

2 Adams: Gallatin, 211. And see Federalist attacks on Marshall's 
answers to "Freeholder," supra. 



INDEPENDENCE IN CONGRESS 453 

votes of the people. It was aimed particularly at 
the anticipated Republican presidential majority in 
Pennsylvania which had just elected a Republican 
Governor over the Federalist candidate. 

On January 3, Senator Ross of Pennsylvania, 
the defeated Federalist candidate for Governor of 
that State, offered a resolution that a committee 
should be appointed to consider a law "for decid- 
ing disputed elections of President and Vice-Presi- 
dent . . . and . . . the legality or illegality of the 
votes given for those officers in the different states." 
In a brief but pointed debate, the Republicans in- 
sisted that such a law would be unconstitutional. 

The Federalist position was that, since the Con- 
stitution left open the manner of passing upon votes, 
Congress had the power to regulate that subject and 
ought to provide some method to meet anticipated 
emergencies. Suppose, said Senator Ross, that "per- 
sons should claim to be Electors who had never been 
'properly appointed [elected], should their vote be 
received? Suppose they should vote for a person to 
be President who had not the age required by the 
Constitution or who had not been long enough a 
citizen of the United States or for two persons who 
were both citizens of the same State? . . . What situ- 
ation would the country be in if such a case was to 
happen?" 1 

So lively was the interest and high the excitement 
that Marshall did not go to Richmond when his fifth 
child was born on February 13, 1800. 2 He spoke in 

1 Annals, Gth Cong., 1st Sess., 29. 

2 James Keith Marshall. 



454 JOHN MARSHALL 

the House February 12, and was appointed on an 
important committee February 13. 1 

On February 14, the bill was reported to the 
Senate. Five days later the Republican organ, the 
"Aurora," made shift to get a copy of the measure, 2 
and printed it in full with a bold but justifiable 
attack upon it and the method of its origin. 3 On 
March 28, the bill passed the Senate by a strict 
party vote. 4 It provided that a "Grand Commit- 
tee," consisting of six Senators and six Representa- 
tives elected by ballot and the Chief Justice of the 
Supreme Court, should take charge of the certifi- 
cates of electoral votes immediately after they had 
been opened and read in the presence of Congress. 

This Grand Committee was to be given power to 
send for papers and persons and, in secret session, 
to consider and determine all questions concerning 
the election. Had bribery been employed, had force 
been used, had threats or intimidation, persuasion 
or cajolery polluted the voters? — the Grand Com- 
mittee was to decide these questions; it was to de- 
clare what electoral votes should be counted; it was 
to throw out electoral votes which it thought to be 
tainted or improper; and the report of this Grand 
Committee was to be final and conclusive. In short, 

1 Annals, 6th Cong., 1st Sess., 520, 522. 

2 At this period the Senate still sat behind closed doors and its pro- 
ceedings were secret. 

3 Annals, 6th Cong., 1st Sess., 105. This led to one of the most 
notably dramatic conflicts between the Senate and the pre is which 
has occurred during our history. For the prosecution of William 
Duane, editor of the Aurora, see ib., 105, 113-19, 123-24. It was 
made a campaign issue, the Republicans charging that it was a Fed- 
eralist plot against the freedom of the press. (See Aurora, March 13 
and 17, 1800.) 4 lb., 146. 



INDEPENDENCE IN CONGRESS 455 

it was to settle absolutely the Presidency; from its 
decree there was to be no appeal. 1 

On March 31, this bill reached the House. While 
no action was taken on it for more than two weeks, 
it was almost the sole topic of conversation among 
the members. In these cloak-room talks, Marshall, 
to the intense disgust and anger of the Federalist 
leaders, was outspoken against this attempt to seize 
the Presidency under the forms of a National law. 

Two weeks later Marshall expressed his opinion 
on the floor. He thought that "some salutary 
mode" to guard against election frauds and to settle 
disputed presidential contests should be adopted; 
but he did not think that the Senate should appoint 
the chairman of the Grand Committee, and he 
objected especially to the finality of its authority. 2 
He moved that these portions of the bill be stricken 
out and offered a substitute. 3 

Opposed as he was to the measure as it came from 
the Senate, he nevertheless was against its indef- 
inite postponement and so voted. 4 His objections 
were to the autocratic and definitive power of the 
Grand Committee; with this cut from the meas- 
ure, he was in favor of a joint committee of the 
House and Senate to examine into alleged election 
frauds and illegalities. The Senate bill was referred 
to a special committee of the House, 5 which re- 
ported a measure in accordance with Marshall's 

1 For a review of this astonishing bill, see McMaster, ii, 462-63, 
and Schouler, i, 475. 

2 Annals, 6th Cong., 1st Sess., 670. 

3 Marshall's substitute does not appear in the Annals. 

* Annals, 6th Cong., 1st Sess., 674. 5 lb., 678. 



456 JOHN MARSHALL 

views. 1 After much debate and several roll-calls, 
the bill, as modified by Marshall, passed the House. 2 

Marshall's reconstruction of the Senate's Dis- 
puted Elections Bill killed that measure. It no 
longer served the purpose of the Federalist presi- 
dential conspiracy. By a strict party vote, the 
Senate disagreed with the House amendments; 3 and 
on the day before adjournment, the bill was finally 
disposed of by postponement. 4 

Thus did Marshall destroy the careful plans for 
his party's further control of the National Govern- 
ment, and increase the probability of the defeat of 
his friend, John Adams, and of the election of his 
enemy, Thomas Jefferson. Had not Marshall inter- 
fered, it seems certain that the Disputed Elections 
Bill would have become a law. If it had been en- 
acted, Jefferson's election would have been impos- 
sible. Once again, as we shall see, Marshall is to 
save the political life of his great and remorseless 
antagonist. 

Yet Jefferson had no words of praise for Marshall. 
He merely remarks that "the bill . . . has under- 
gone much revolution. Marshall made a dexterous 
manceuver; he declares against the constitutionality 
of the Senate's bill, and proposes that the right of 
decision of their grand committee should be con- 
trollable by the concurrent vote of the two houses of 
congress; but to stand good if not rejected by a con- 
current vote. You will readily estimate the amount 
of this sort of controul." 5 

1 Annals, 6th Cong., 1st Sess., 691-92. 2 lb., 687-710. 

3 lb., 179. * lb., 182. 4 

5 Jefferson to Livingston, April 30, 1800; Works : Ford, ix, 132. 



INDEPENDENCE IN CONGRESS 457 

The party leaders labored hard and long with 
Marshall while the Disputed Elections Bill was 
before the House. Speaker Sedgwick thus describes 
the Federalist plot and the paralyzing effect of 
Marshall's private conversations with his fellow 
members: "Looking forward to the ensuing elec- 
tion," writes the disgusted Speaker, "it was deemed 
indispensable to prescribe a mode for canvassing 
the votes, provided there should be a dispute. 
There being no law in the state [Pennsylvania], the 
governor had declined, and the jacobins [Republi- 
cans] propagated the report . . . that he would re- 
turn their votes. A bill was brought into the Senate 
& passed, wisely & effectually providing against the 
evil, by the constitution of a committee with ulti- 
mate powers of decision. 

"Mr. Marshall in the first place called in question 
the constitutional powers of the legislature to dele- 
gate such authority to a Committee. On this ques- 
tion I had a long conversation with him, & he finally 
confessed himself (for there is not a more candid 
man on earth) to be convinced. 

"He then resorted to another ground of opposi- 
tion. He said the people having authorized the 
members to decide, personally, all disputes relative 
to those elections, altho' the power was not indele- 
gable, yet he thought, in its nature, it was too deli- 
cate to be delegated, until experience had demon- 
strated that great inconveniences would attend its 
exercise by the Legislature; altho' he had no doubt 
such would be the result of the attempt. 

"This objection is so attenuated and unsub- 



458 JOHN MARSHALL 

stantial as to be hardly perceivable by a mind so 
merely practical as mine. He finally was convinced 
that it was so and abandoned it. 

"In the mean time, however, he had dwelt so 
much, in conversation, on these subjects that he had 
dissipated our majority, and it never could again 
be compacted. The consequence was that the bill 
was lost." 1 

Marshall's most notable performance while in 
Congress was his effort in the celebrated Jonathan 
Robins case — "a speech," declares that capable 
and cautious critic, Henry Adams, "that still stands 
without a parallel in our Congressional debates." 2 
In 1797 the crew of the British ship Hermione 
mutinied, murdered their officers, took the ship to 
a Spanish port, and sold it. One of the murderers 
was Thomas Nash, a British subject. Two years 
later, Nash turned up at Charleston, South Caro- 
lina, as the member of a crew of an American 
schooner. 

On the request of the British Consul, Nash was 
seized and held in jail under the twenty-seventh 
article of the Jay Treaty. Nash swore that he was 
not a British subject, but an American citizen, Jon- 
athan Robins, born in Danbury, Connecticut, and 
impressed by a British man-of-war. On overwhelm- 
ing evidence, uncontradicted except by Nash, that 
the accused man was a British subject and a mur- 
derer, President Adams requested Judge Bee, of the 
United States District Court of South Carolina, to 

1 Sedgwick to King, May 11, 1800; King, iii, 237-38. 

2 Adams: Gallatin, 232. 



INDEPENDENCE IN CONGRESS 459 

deliver Nash to the British Consul pursuant to the 
article of the treaty requiring the delivery. 1 

Here was, indeed, a campaign issue. The land 
rang with Republican denunciation of the Presi- 
dent. What servile truckling to Great Britain! Nay, 
more, what a crime against the Constitution! 
Think of it ! An innocent American citizen delivered 
over to British cruelty. Where now were our free 
institutions? When President Adams thus sur- 
rendered the Connecticut "Yankee," Robins, he 
not only prostituted patriotism, showed himself a 
tool of British tyranny, but also usurped the func- 
tions of the courts and struck a fatal blow at the 
Constitution. So shouted Republican orators and 
with immense popular effect. 

The fires kindled by the Alien and Sedition Laws 
did not heat to greater fervency the public imagina- 
tion. Here was a case personal and concrete, flaming 
with color, full of human appeal. Jefferson took 
quick party advantage of the incident. "I think," 
wrote he, "no circumstance since the establishment 
of our government has affected the popular mind 
more. I learn that in Pennsylvania it had a great 
effect. I have no doubt the piece you inclosed will 
run through all the republican papers, & carry the 
question home to every man's mind." 2 

"It is enough to call a man an Irishman, to make 
it no murder to pervert the law of nations and to 
degrade national honor and character. . . . Look 
at what has been done in the case of Jonathan 

1 United States vs. Nash alias Robins, Bee's Reports, 266. 

2 Jefferson to Charles Pinckney, Oct. 29, 1799; Works: Ford, ix, 87, 



460 JOHN MARSHALL 

Robbins," [sic] exclaimed the "Aurora.'* "A British 
lieutenant who never saw him until he was prisoner 
at Charleston swears his name is Thomas Nash." 
So "The man is hanged!" 1 

For the purposes of the coming presidential cam- 
paign, therefore, the Robins affair was made the 
principal subject of Republican congressional at- 
tack on the Administration. On February 4, the 
House requested the President to transmit all the 
papers in the case. He complied immediately. 2 The 
official documents proved beyond a doubt that the 
executed sailor had not been an American citizen, 
but a subject of the British King and that he had 
committed murder while on board a British vessel 
on the high seas. 

The selectmen of Danbury, Connecticut, certified 
that no such person as Jonathan Robins nor any 
family of the name of Robins ever had lived in that 
town. So did the town clerk. On the contrary, a 
British naval officer, who knew Nash well, identified 
him. 3 

Bayard, for the Federalists, took the aggressive 
and offered a resolution to the effect that the Presi- 
dent's conduct in the Robins case "was conformable 
to the duty of the Government and to . . . the 27th 
article of the Treaty . . . with Great Britain." 4 

Forced to abandon their public charge that the 
Administration had surrendered an innocent Ameri- 

1 Aurora, Feb. 12, 1800. 2 Annals, 6th Cong., 1st Sess., 511. 

3 76., 515-18. Nash himself confessed before his execution that he 
was a British subject as claimed by the British authorities and as shown 
by the books of the ship Hermione. 

4 lb., 526. 



INDEPENDENCE IN CONGRESS 461 

can citizen to British cruelty, 1 the Republicans 
based their formal assault in Congress upon the 
ground that the President had disobeyed the laws, 
disregarded the Constitution, and taken upon him- 
self the discharge of duties and functions which 
belonged exclusively to the courts. They contended 
that, even if Nash were guilty, even if he were not 
an x\merican citizen, he should, nevertheless, have 
been tried by a jury and sentenced by a court. 

On February 20, Livingston of New York offered 
the Republican resolutions to this effect. Not only 
was the President's conduct in this serious business 
a "dangerous interference of the Executive with 
judicial decisions," declared the resolution, but the 
action of the court in granting the President's re- 
quest was "a sacrifice of the Constitutional inde- 
pendence of the judicial power and exposes the 
administration thereof to suspicion and reproach." 2 

The House decided to consider the Livingston 
resolutions rather than those offered by Bayard, the 
Federalists to a man supporting this method of meet- 
ing the Republicans on the ground which the latter, 
themselves, had chosen. Thus the question of con- 
stitutional power in the execution of treaties came 
squarely before the House, and the great debate was 
on. 3 For two weeks this notable discussion con- 
tinued. The first day was frittered away on ques- 
tions of order. 

The next day the Republicans sought for delay 4 

1 The Republicans, however, still continued to urge this falsehood 
before the people and it was generally believed to be true. 

2 Annals, 6th Congress, 1st Sess., 532-33. 

3 lb., 541-47. 4 lb., 548, 



462 JOHN MARSHALL 

— there were not sufficient facts before the House, 
they said, to justify that body in passing upon so 
grave a question. The third day the Republicans 
proposed that the House should request the Presi- 
dent to secure and transmit the proceedings before 
the South Carolina Federal Court on the ground 
that the House could not determine the matter until 
it had the court proceedings. 1 

Marshall's patience was exhausted. He thought 
this procrastinating maneuver a Republican trick 
to keep the whole matter open until after the coming 
presidential campaign, 2 and he spoke his mind 
sharply to the House. 

"Let gentlemen recollect the nature of the case," 
exclaimed Marshall; "the President of the United 
States is charged by this House with having violated 
the Constitution and laws of his country, by having 
committed an act of dangerous interference with a 
judicial decision — he is so charged by a member of 
this House. Gentlemen were well aware how much 
the public safety and happiness depended on a well 
or a misplaced confidence in the Executive. 

"Was it reasonable or right," he asked, "to receive 
this charge — to receive in part the evidence in 
support of it — to receive so much evidence as 
almost every gentleman declared himself satisfied 
with, and to leave the charge unexamined, hanging 
over the head of the President of the United States 
. . . how long it was impossible to say, but certainly 
long enough to work a very bad effect? To him it 

1 Annals, 6th Cong., 1st Sess., 558. 

2 This, in fact, was the case. 



INDEPENDENCE IN CONGRESS 463 

seemed of all things the most unreasonable and un- 
just; and the mischief resulting therefrom must be 
very great indeed." 

The House ought to consider the evidence it 
already had; if, on such examination, it appeared 
that more was needed, the matter could then be 
postponed. And, in any event, why ask the Presi- 
dent to send for the court proceedings? The House 
had as much power to procure the papers as the 
President had. "Was he [the President] to be a 
menial to the House in a business wherein himself 
was seriously charged?" 1 

Marshall was aroused. To his brother he thus 
denounces the tactics of the Republicans: "Every 
stratagem seems to be used to give to this business 
an undue impression. On the motion to send for 
the evidence from the records of South Carolina 
altho' it was stated & prov'd that this would 
amount to an abandonment of the enquiry during 
the present session & to an abandonment under cir- 
cumstances which would impress the public mind 
with the opinion that we really believed Mr. Living- 
ston's resolutions maintainable; & that the record 
could furnish no satisfaction since it could not con- 
tain the parol testimony offered to the Judge & fur- 
ther that it could not be material to the President 
but only to the reputation of the Judge what the 
amount of the testimony was, yet the debate took 
a turn as if we were precipitating a decision without 
enquiry & without evidence." 2 

1 Annals, 6th Cong., 1st Sess., 565. 

2 Marshall to James M. Marshall, Feb. 28, 1800; MS. 



464 JOHN MARSHALL 

This Republican resolution was defeated. So was 
another by Gallatin asking for the papers in the 
case of William Brigstock, which the Republicans 
claimed was similar to that of Jonathan Robins. 
Finally the main question came on. For two hours 
Gallatin made an ingenious argument in support of 
the Livingston resolutions. 1 

The next day, March 7, Marshall took the floor 
and made the decisive speech which put a period to 
this partisan controversy. He had carefully revised 
his argument, 2 and it is to this prevision, so unlike 
Marshall's usual methods, that we owe the perfec- 
tion of the reporter's excellent transcript of his per- 
formance. This great address not only ended the 
Republican attack upon the Administration, but 
settled American law as to Executive power in carry- 
ing out extradition treaties. Marshall's argument 
was a mingling of impressive oratory and judicial 
finality. It had in it the fire of the debater and the 
calmness of the judge. 

It is the highest of Marshall's efforts as a public 
speaker. For many decades it continued to be pub- 
lished in books containing the masterpieces of Amer- 
ican oratory as one of the best examples of the art. 3 
It is a landmark in Marshall's career and a monu- 
ment in the development of the law of the land. 
They go far who assert that Marshall's address is 

1 Annals, 6th Cong., 1st Sess., 595-96. 

2 Pickering to James Winchester, March 17, 1800; Pickering 
MSS., Mass. Hist. Soc. Also Binney, in Dillon, hi, 312. 

3 See Moore: American Eloquence, ii, 20-23. The speech also ap- 
pears in full in Annals, 6th Cong., 1st Sess., 596-619; in Benton: 
Abridgment of the Debates of Congress ; in Bee's Reports, 266; and in 
the Appendix to Wharton : State Trials, 443. 



INDEPENDENCE IN CONGRESS 465 

a greater performance than any of the speeches of 
Webster, Clay, Sumner, or other American orators 
of the first class ; and yet so perfect is this speech 
that the commendation is not extreme. 

The success of a democratic government, said 
Marshall, depended not only on its right adminis- 
tration, but also on the public's right understanding 
of its measures; public opinion must be "rescued 
from those numerous prejudices which . . . sur- 
round it." Bayard and others had so ably defended 
the Administration's course that he would only 
"reestablish" and "confirm" what they had so well 
said. 

Marshall read the section of the Jay Treaty under 
which the President acted: This provided, said he, 
that a murderer of either nation, fleeing for "asy- 
lum" to the other, when charged with the crime, 
and his delivery demanded on such proof as would 
justify his seizure under local laws if the murder 
had been committed in that jurisdiction, must be 
surrendered to the aggrieved nation. Thus Great 
Britain had required Thomas Nash at the hands 
of the American Government. He had committed 
murder on a British ship and escaped to America. 

Was this criminal deed done in British jurisdic- 
tion? Yes; for "the jurisdiction of a nation extends 
to the whole of its territory, and to its own citizens 
in every part of the world. . . . The nature of civil 
union" involves the "principle" that "the laws of a 
nation are rightfully obligatory on its own citizens 
in every situation where those laws are really ex- 
tended to them." 



466 JOHN MARSHALL 

This "is particularly recognized with respect to 
the fleets of a nation on the high seas." By "the 
opinion of the world ... a fleet at sea is within the 
jurisdiction of the nation to which it belongs," and 
crimes there committed are punishable by that na- 
tion's laws. This is not contradicted by the right of 
search for contraband, as Gallatin had contended, 
for "in the sea itself no nation has any jurisdiction," 
and a belligerent has a right to prevent aid being 
carried to its enemy. But, as to its crew, every ship 
carried the law of its flag. 

Marshall denied that the United States had ju- 
risdiction, concurrent or otherwise, over the place of 
the murder; "on the contrary, no nation has any 
jurisdiction at sea but over its own citizens or ves- 
sels or offenses against itself." Such "jurisdiction 
... is personal, reaching its own citizens only"; 
therefore American authority "cannot extend to a 
murder committed by a British sailor on board a 
British frigate navigating the high seas." There is no 
such thing as "common [international] jurisdiction" 
at sea, said Marshall ; and he exhaustively illustrated 
this principle by hypothetical cases of contract, 
dueling, theft, etc., upon the ocean. "A common 
jurisdiction ... at sea . . . would involve the power 
of punishing the offenses . . . stated." Piracy was 
the one exception, because "against all and every 
nation . . . and therefore punishable by all alike." 
For "a pirate ... is an enemy of the human race." 

Any nation, however, may by statute declare an 
act to be piratical which is not so by the law of na- 
tions; and such an act is punishable only by that 



INDEPENDENCE IN CONGRESS 467 

particular state and not by other governments. But 
an act universally recognized as criminal, such as 
robbery, murder, and the like, "is an offense against 
the community of nations." 

The Republican contention was that murder and 
robbery (seizure of ships) constituted piracy " by the 
law of nations," and that, therefore, Nash should 
have been indicted and tried by American authority 
as a pirate; whereas he had been delivered to Great 
Britain as a criminal against that nation. 

But, said Marshall, a single act does not neces- 
sarily indicate piratical intent unless it "manifests 
general hostility against the world"; if it shows an 
"intention to rob generally, then it is piracy." If, 
however, "it be merely mutiny and murder in a 
vessel with the intention of delivering it up to the 
enemy, it" is "an offense against a single nation and 
not piracy." It was only for such murder and "not 
piracy" that "Nash was delivered." And, indisput- 
ably, this was covered by the treaty. Even if Nash 
had been tried and acquitted for piracy, there still 
would have remained the crime of murder over which 
American courts had no jurisdiction, because it was 
not a crime punishable by international law, but 
only by the law of the nation in whose jurisdiction 
the crime was committed, and to which the crimi- 
nal belonged. 

American law and American courts could not deal 
with such a condition, insisted Marshall, but British 
law and courts could and the treaty bound America 
to deliver the criminal into British hands. "It was 
an act to which the American Nation was bound by 



468 JOHN MARSHALL 

a most solemn compact." For an American court 
to have convicted Nash and American authorities 
to have executed him " would have been murder"; 
while for them to have "acquitted and discharged 
him would have been a breach of faith and a viola- 
tion of national duty." 

It was plain, then, said he, that Nash should 
have been delivered to the British officers. By 
whom? The Republicans insisted that this author- 
ity was in the courts. Marshall demonstrated that 
the President alone could exercise such power. It 
was, he said, "a case for Executive and not for 
judicial decision." The Republican resolutions de- 
clared that the judicial power extends to all ques- 
tions arising under the Constitution, treaties, and 
laws of the United States; but the Constitution itself 
provided that the judicial power extends only to all 
cases "in law and equity" arising under the Consti- 
tution, laws, and treaties of the United States. 

"The difference was material and apparent," said 
Marshall. "A case in law or equity was a term well 
understood and of limited signification. It was a 
controversy between parties which had taken a 
shape for judicial decision. If the judicial power ex- 
tended to every question under the Constitution, it 
would involve almost every subject proper for Legis- 
lative discussion and decision; if to every question 
under the laws and treaties of the United States, it 
would involve almost every subject on which the 
Executive could act. The division of power . . . 
could exist no longer, and the other departments 
would be swallowed up in the Judiciary." 



INDEPENDENCE IN CONGRESS 469 

The Constitution did not confer on the Judiciary 
" any political power whatever." The judicial power 
covered only cases where there are "parties to come 
into court, who can be reached by its process and 
bound by its power; whose rights admit of ultimate 
decision by a tribunal to which they are bound to 
submit." Such a case, said Marshall, "may arise 
under a treaty where the rights of individuals ac- 
quired or secured by a treaty are to be asserted or 
defended in court"; and he gave examples. "But 
the judicial power cannot extend to political com- 
pacts; as the establishment of the boundary line 
between American and British Dominions ... or 
the case of the delivery of a murderer under the 
twenty-seventh article of our present Treaty with 
Britain. . . . 

"The clause of the Constitution which declares 
that 'the trial of all crimes . . . shall be by jury'" 
did not apply to the decision of a case like that 
of Robins. "Certainly this clause . . . cannot be 
thought obligatory on . . . the whole world. It is 
not designed to secure the rights of the people of 
Europe or Asia or to direct and control proceedings 
against criminals throughout the universe. It can, 
then, be designed only to guide the proceedings of 
our own courts" in cases "to which the jurisdiction 
of the nation may rightfully extend." And the 
courts could not " try the crime for which Thomas 
Nash was delivered up to justice." The sole question 
was "whether he should be delivered up to a foreign 
tribunal which was alone capable of trying and 
punishing him." A provision for the trial of crimes 



470 JOHN MARSHALL 

in the courts of the United States is clearly "not a 
provision for the surrender to a foreign Government 
of an offender against that Government." 

If the murder by Nash were a crime, it is one 
"not provided for by the Constitution"; if it were 
not a crime, "yet it is the precise case in which his 
surrender was stipulated by treaty" which the Pres- 
ident, alone, must execute. That in the Executive 
decision "judicial questions" must also be deter- 
mined, argued nothing; for this often must be the 
case, as, for instance, in so simple and ordinary mat- 
ter as issuing patents for public lands, or in settling 
whether vessels have been captured within three 
miles of our coasts, or in declaring the legality of 
prizes taken by privateers or the restoration of such 
vessels — all such questions, of which these are fa- 
miliar examples, are, said Marshall, "questions of 
political law proper to be decided by the Executive 
and not by the courts." 

This was the Nash case. Suppose that a murder 
were "committed within the United States and the 
murderer should seek an asylum in Great Britain ! " 
The treaty covered such a case; but no man would 
say "that the British courts should decide" it. It 
is, in its nature, a National demand made upon the 
Nation. The parties are two nations. They cannot 
come into court to litigate their claims, nor can a 
court decide on them. "Of consequence," declares 
Marshall, "the demand is not a case for judicial 
cognizance." 

"The President is the sole organ of the nation in 
its external relations"; therefore "the demand of a 



INDEPENDENCE IN CONGRESS 471 

foreign nation can only be made on him. He pos- 
sesses the whole Executive power. He holds and 
directs the force of the nation. Of consequence, any 
act to be performed by the force of the nation is to 
be performed through him. He is charged to execute 
the laws. A treaty is ... a law. He must, then, 
execute a treaty, where he, and he alone, possesses 
the means of executing it." 

This, in rough outline, is Marshall's historic speech 
which helped to direct a new nation, groping blindly 
and with infinite clamoring, to a straight and safe 
pathway. Pickering immediately reported to Ham- 
ilton: " Mr. Marshall delivered a very luminous ar- 
gument on the case, placing the 27th article of the 
treaty in a clear point of view and giving construc- 
tions on the questions arising out of it perfectly sat- 
isfactory, but, as it would seem, wholly unthought 
of when the meaning of the article was heretofore 
considered. His argument will, I hope, be fully 
and correctly published; it illustrates an important 
national question." 1 

The Republicans were discomfited ; but they w^ere 
not without the power to sting. Though Marshall 
had silenced them in Congress, the Republican press 
kept up the attack. "Mr. Marshall made an in- 
genious and specious defence of the administration, 
in relation to executive interference in the case of 
Robbins" [sic] says the "Aurora," "but he was com- 
pelled to admit, what certainly implicates both the 
President and Judge Bee. . . . He admitted that an 
American seaman was justifiable, in rescuing him- 

1 Pickering to Hamilton, March 10, 1800; Pickering MSS., Mass. 
Hist. Soc. 



472 JOHN MARSHALL 

self from impressment, to put to death those who 
kept him in durance. . . . Robbins [sic] claimed to 
be an American citizen, and asserted upon his oath, 
that he had been impressed and yet his claim was 
not examined into by the Judge, neither did the 
President advise and request that this should be a 
subject of enquiry. The enquiry into his citizen- 
ship was made after his surrender and execution, 
and the evidence exhibited has a very suspicious 
aspect. . . . Town clerks may be found to certify to 
anything that Timothy Pickering shall desire." 1 
Nevertheless, even the "Aurora" could not resist an 
indirect tribute to Marshall, though paying it by 
way of a sneer at Samuel W. Dana of Connecticut* 
who ineffectually followed him. 

"In the debate on Mr. Livingston s resolutions, on 
Friday last," says the "Aurora," "Mr. Marshall 
made, in the minds of some people, a very satisfac- 
tory defense of the conduct of the President and 
Judge Bee in the case of Jonathan Robbins [sic]. Mr. 
Dana, however, thought the subject exhausted, and 
very modestly (who does not know his modesty) re- 
solved with his inward man to shed a few more 
rays of light on the subject; a federal judge, much 
admired for his wit and humour, happened to be 
present, when Mr. Dana began his flourishes. 

"The judge thought the seal of conviction had 
been put upon the case by Mr. Marshall, and dis- 
covered symptoms of uneasiness when our little 
Connecticut Cicero displayed himself to catch Mr. 
Speaker's vacant eye — 'Sir,' said the wit to a bye- 

1 Aurora, March 10, 1800. 



INDEPENDENCE IN CONGRESS 473 

stander, 'what can induce that man to rise, he is 
nothing but a shakebag, and can only shake out the 
ideas that have been put into the members' heads 
by Mr. Marshall.'" 1 

Marshall's argument was conclusive. It is one 
of the few speeches ever delivered in Congress 
that actually changed votes from one party to the 
other in a straight-out party fight. Justice Story 
says that Marshall's speech "is one of the most 
consummate juridical arguments which was ever 
pronounced in the halls of legislation; . . . equally 
remarkable for the lucid order of its topics, the pro- 
foundness of its logic, the extent of its research, 2 
and the force of its illustrations. It may be said of 
that speech . . . that it was ' Reponse sans replique,' 
an answer so irresistible that it admitted of no 
reply. It silenced opposition and settled then and 
forever the points of international law on which the 
controversy hinged. . . . An unequivocal demonstra- 
tion of public opinion followed. The denunciations 
of the Executive, which had hitherto been harsh 
and clamorous everywhere throughout the land, 
sunk away at once into cold and cautious whispers 
only of disapprobation. 

"Whoever reads that speech, even at this dis- 
tance of time, when the topics have lost much of 
their interest, will be struck with the prodigious 

1 Aurora, March 14, 1800. 

2 Marshall's speech on the Robins case shows some study, but not 
so much as the florid encomium of Story indicates. The speeches of 
Bayard, Gallatin, Nicholas, and others display evidence of much 
more research than that of Marshall, who briefly refers to only two 
authorities. 



474 JOHN MARSHALL 

powers of analysis and reasoning which it displays, 
and which are enhanced by the consideration that 
the whole subject was then confessedly new in many 
of its aspects." l 

The Republican leaders found their own mem- 
bers declaring themselves convinced by Marshall's 
demonstration and announcing their intentions of 
voting with the Administration. Gallatin, Living- 
ston, and Randolph had hard work to hold their 
followers in line. Even the strongest efforts of 
these resourceful men would not rally all of their 
shattered forces. Many Republican members ig- 
nored the pleadings of their leaders and supported 
Marshall's position. 

This is not to be wondered at, for Marshall had 
convinced even Gallatin himself. This gifted native 
of Switzerland was the Republican leader of the 
House. Unusually well-educated, perfectly upright, 
thorough in his industry, and careful in his thinking, 
Gallatin is the most admirable of all the characters 
attracted to the Republican ranks. He had made 
the most effective argument on the anti-Administra- 
tion side in the debate over the Livingston resolu- 
tions, and had been chosen to answer Marshall's 
speech. He took a place near Marshall and began 
making notes for his reply; but soon he put his 
pencil and paper aside and became absorbed in 
Marshall's reasoning. After a while he arose, went 
to the space back of the seats, and paced up and 
down while Marshall proceeded. 

When the Virginian closed, Gallatin did not come 

1 Story, in Dillon, iii, 357-58. 



INDEPENDENCE IN CONGRESS 475 

forward to answer him as his fellow partisans had ex- 
pected. His Republican colleagues crowded around 
the brilliant little Pennsylvania Swiss and pleaded 
with him to answer Marshall's speech without delay. 
But Gallatin would not do it. "Answer it yourself," 
exclaimed the Republican leader in his quaint for- 
eign accent; "for my part, I think it unanswerable," 
laying the accent on the swer. 1 

Nicholas of Virginia then tried to reply, but made 
no impression: Dana spoke to no better purpose, 
and the House ended the discussion by a vote which 
was admitted to be a distinctively personal triumph 
for Marshall. The Republican resolutions were de- 
feated by 61 to 35, in a House w T here the parties 
were nearly equal in numbers. 2 

For once even Jefferson could not withhold his 
applause for Marshall's ability. "Livingston, Nich- 
olas & Gallatin distinguished themselves on one 
side & J. Marshall greatly on the other," he writes 
in his curt account of the debate and its result. 3 
And this grudging tribute of the Republican chief- 
tain is higher praise of Marshall's efforts than the 
flood of eulogy which poured in upon him; Jeffer- 
son's virulence toward an enemy, and especially 
toward Marshall, was such that he could not see, 
except on rare occasions, and this was one, any 
merit whatever in an opponent, much less express it. 

1 Grigsby, i, 177; Adams: Gallatin, 232. 

2 Annals, 6th Cong., 1st Sess., 619. 

3 Jefferson to Madison, March 8, 1800; Works: Ford, ix, 121. In 
sending the speeches on both sides to his brother, Levin Powell, a 
Virginia Federalist Representative, says: "When you get to Mar- 
shall's it will be worth a perusal." (Levin Powell to Major Burr 
Powell, March 26, 1800; Branch Historical Papers, ii, 241.) 



476 JOHN MARSHALL 

Marshall's defense of the army law was scarcely 
less powerful than his speech in the Robins case; and 
it reveals much more clearly Marshall's distinctively 
military temper of mind. 

Congress had scarcely organized when the ques- 
tion came up of the reduction of the army. On this 
there was extended debate. Nicholas of Virginia 
offered a resolution to repeal the act for the provi- 
sional army of which Washington had been the 
Commander-in-Chief. The expense of this military 
establishment greatly alarmed Nicholas, who pre- 
sented an array of figures on which his anxieties fed. 1 
It was nonsense, he held, to keep this army law on 
the statute books for its effect on the negotiations 
with France. 

Marshall promptly answered. "If it was true," 
said he, "that America, commencing her negotiation 
with her present military force would appear in the 
armor which she could only wear for a day, the situ- 
ation of our country was lamentable indeed. If our 
debility was really such . . . our situation was truly 
desperate." There was "no cheaper mode of self- 
defense"; to abandon it "amounted to a declaration 
that we were unable to defend ourselves." It was 
not necessary to repeal the law entirely or to put it, 
"not modified," in full effect. Marshall suggested a 
middle ground by which "the law might be modified 
so as to diminish the estimated expense, without dis- 
missing the troops already in actual service." 2 

Answering the favorite argument made by the 
opponents of the army, that no power can invade 
1 Annals, 6th Cong., 1st Sess., 247-50. 2 lb., 252. 



IXDEPEXDEXCE IN CONGRESS 477 

America, he asked: "What assurance have gentle- 
men that invasion is impracticable?" Who knows 
the real conditions in Europe? — the "effect of the 
late decisive victories of France? ... It was by no 
means certain" that these had not resulted in the 
release of forces which she " may send across the 
Atlantic." 

Why be precipitate? asked Marshall; by the open- 
ing of the next campaign in Europe we should have 
more information. Let us look the situation in the 
face: "We are, in fact, at war with France, though 
it is not declared in form"; commerce is suspended; 
naval battles are being fought; property is " captured 
and confiscated"; prisoners are taken and incarcer- 
ated. America is of "vast importance to France"; 
indeed, "the monopoly of our commerce in time of 
peace" is invaluable to both France and England 
"for the formation of a naval power." 

The Republicans, he said, had "urged not only 
that the army is useless," but that we could not 
afford the expense of maintaining it. "Suppose this 
had been the language of '75 ! " exclaimed Marshall. 
"Suppose a gentleman had risen on the floor of 
Congress, to compare our revenues with our ex- 
penses — what would have been the result of the 
calculation?" It would have shown that we could 
not afford to strike for our independence! Yet we 
did strike and successfully. "If vast exertions were 
then made to acquire independence, will not the 
same exertions be now made to maintain it? " 

The question was, "whether self-government and 
national liberty be worth the money which must be 



478 JOHN MARSHALL 

expended to preserve them? "* He exposed the soph- 
istry of an expensive economy. It should never be 
forgotten that true economy did not content itself 
with inquiring into the mere saving of the present 
moment; it should take an enlarged view of the 
subject, and determine, on correct calculations, 
whether the consequence of a present saving might 
not be a much more considerable future expenditure. 

Marshall admitted that the reduction of the army 
would certainly diminish the expense of the present 
year, but contended that the present saving would 
bear no proportion to the immense waste of blood, 
as well as treasure, which it might occasion. 2 "And 
consider," he exclaimed, " the effect the army already 
had produced on the mind and conduct of France. 
While America was humbly supplicating for peace, 
and that her complaints might be heard, France 
spurned her contemptuously and refused to enter on 
a discussion of differences, unless that discussion was 
preceded by a substantial surrender of the essential 
attributes of independence." 

"America was at length goaded into resistance," 
asserted Marshall, "and resolved on the system of 
defense, of which the army now sought to be dis- 
banded forms a part." What was the result? "Im- 
mediately the tone of France was changed, and she 
consented to treat us as an independent nation. 
Her depredations indeed did not cease; she contin- 
ued still to bring war upon us; but although peace 
was not granted, the door to peace was opened." 

If " a French army should be crossing the Atlantic 

1 Annals, 6th Cong., 1st Sess., 253-54. 2 lb. 



INDEPENDENCE IN CONGRESS 479 

to invade our territory," would anybody insist on 
disbanding our army? "Was it wise, then, to do so 
while such a probability existed? " In a few months 
we should know; and, if danger should disappear, 
"the army expires by the law which gave it being.'' 
Meantime the expense would be trifling. 1 

In a private letter Marshall states, with even more 
balance, his views of the conflicting questions of the 
expense involved in, and the necessity for, military 
equipment. He regrets that a loan is "absolutely 
unavoidable"; but "attention must be paid to our 
defenses": — 

"The whole world is in arms and no rights are 
respected but those that [are] maintained by force. 
In such a state of things we dare not be totally un- 
mindful of ourselves or totally neglectful of that 
military position to which, in spite of the prudence 
and pacific disposition of our government, we may 
be driven for the preservation of our liberty and 
national independence. 

"Altho' we ought never to make a loan if it be 
avoidable, yet when forc'd to it much real consola- 
tion is to be deriv'd from the future resources of 
America. These resources, if we do not throw them 
away [by] dissolving the union, are invaluable. It 
is not to be doubted that in twenty years from this 
time the United States would be less burthen'd by a 
revenue of tw r enty millions than now by a revenue 
of ten. It is the plain & certain consequence of our 
increasing population & our increasing wealth. . . . 

"The system of defence which has rendered this 

1 Annals, 6th Cong., 1st Sess., 254, %oo. 



480 JOHN MARSHALL 

measure necessary was not [only] essential to our 
character as an independent nation, but it has actu- 
ally sav'd more money to the body of the people 
than has been expended & has very probably pre- 
vented either open war or such national degrada- 
tion as would make us the objects of general con- 
tempt and injury. 

"A bill to stop recruiting in the twelve additional 
regiments has been brought in and will pass without 
opposition. An attempt was made absolutely to dis- 
band them, but [it] was negativ'd. It has been so 
plainly prov'd to us that french aggression has been 
greatly increased, & that their contemptuous refusal 
even to treat with us as an independent nation has 
been entirely occasioned by a belief that we could 
not resist them; & it is so clear that their present 
willingness to treat is occasioned by perceiving our 
determination to defend ourselves, that it was 
thought unwise to change materially our system at 
the commencement of negotiation. 

"In addition to this it had much weight, that we 
should know in a few months the facts of our nego- 
tiation & should then be able to judge whether the 
situation & temper of France rendered an invasion 
pro[bable]. Then would be the time to decide on 
diminishing [or] augmenting our military forces. 
A French 64 has it is said arrived in the west indies 
& three frigates expected." 1 

Although the debate dragged on and the army 

1 Marshall to Dabney, Jan. 20,1800; MS. Colonel Charles Dabney 
of Virginia was commander of "Dabney's Legion" in the Revolution. 
He was an ardent Federalist and a close personal and political friend 
of Marshall. 



INDEPENDENCE IN CONGRESS 481 

was attacked and defended with brilliant ability, 
Marshall's argument remained the Gibraltar of the 
Administration, upon which all the assaults of the 
Republicans were centered unavailingly. For his 
army speech was never answered. Only once more 
during this debate did Marshall rise and then but 
briefly, to bring his common sense to bear upon the 
familiar contention that, if the country is in danger, 
its citizens will rise spontaneously to defend it. 
He said that it would be absurd to call men to 
arms, as had been done, and then "dismiss them 
before the service was performed . . . merely be- 
cause their zeal could be depended on" hereafter. 
He "hoped the national spirit would never yield to 
that false policy." x 

The fourth important subject in which Marshall 
was a decisive influence was the National Bank- 
ruptcy Law, passed at this session of Congress. 
He was the second member of the committee that 
drafted this legislation. 2 For an entire month the 
committee worked on the bill and reported it on 
January 6, 1S00. 3 After much debate, which is not 
given in the official reports, the bill passed the 
House on February 21 and the Senate March 28. 4 

While the "Annals" do not show it, we know 
from the testimony of the Speaker of the House that 
Marshall was the vital force that shaped this first 
National Bankruptcy Act. He was insistent that 
the law should not be too extensive in its provisions 
for the curing of bankruptcy, and it was he who 

1 Annals, 6th Cong., 1st Sess., 395-96. 2 lb., 191. 

8 lb., 247. 4 76., 126; see law as passed, 1452-71. 



482 JOHN MARSHALL 

secured the trial by jury as to the fact of bank- 
ruptcy. 

"It [the Bankruptcy Law] is far from being such 
an one as I wished," writes Sedgwick. "The acts 
in curing bankruptcy are too restricted, and the 
trial of the question Bankrupt or not, by jury, will 
be found inconvenient, embarrassing & dilatory. 
The mischief was occasioned by Virginia Theory. 
It was the whim of General Marshall; with him a 
sine qua non of assent to the measure, & without 
him the bill must have been lost, for it passed the 
House by my casting vote." 

"Besides the bankrupt bill, we have passed [only] 
one more of great importance," writes the Speaker 
of the House in a review of the work of the ses- 
sion. 1 Much of the Speaker's summary is devoted 
to Marshall. Sedgwick was greatly disappointed 
with the laws passed, with the exception of the 
Bankruptcy Bill "and one other." 2 "All the rest 
we have made here are, as to any permanently bene- 
ficial effects, hardly worth the parchment on which 
they are written. The reason of this feebleness is 
a real feebleness of character in the house. " Sedg- 

1 Sedgwick to King, May 11, 1800; King, iii, 236. 

2 The act requiring the Secretary of the Treasury to lay before Con- 
gress at each session a report of financial conditions with his recom- 
mendations. (Annals, 6th Cong., 1st Sess., Appendix, 1523.) The 
Speaker thought this law important because it "will give splendor to 
the officer [Secretary of the Treasury] and respectability to the Ex- 
ecutive Department of the Govt." (Sedgwick to King, supra.) Yet 
the session passed several very important laws, among them the act 
accepting the cession of the Western Reserve (Annals, 6th Cong., 1st 
Sess., Appendix, 1495-98) and the act prohibiting American citizens 
"or other persons residing within the United States" to engage in 
the slave trade between foreign countries (ib., 1511-14.) 



INDEPENDENCE IN CONGRESS 483 

wick lays most of this at Marshall's door, and in 
doing so, draws a vivid picture of Marshall the 
man, as well as of Marshall the legislator: — 

"Marshall was looked up to as the man whose 
great and commanding genius was to enlighten & 
direct the national councils. This was the general 
sentiment, while some, and those of no inconsider- 
able importance, calculating on his foolish declara- 
tion, relative to the alien & sedition laws, thought 
him temporizing while others deemed him feeble. 

"None had in my opinion justly appreciated his 
character. As his character has stamped itself on the 
measures of the present session, I am desirous of 
letting you know how I view it. 

"He is a man of a very affectionate disposition, 
of great simplicity of manners and honest & hon- 
orable in all his conduct. 

"He is attached to pleasures, with convivial 
habits strongly fixed. 

"He is indolent, therefore; and indisposed to take 
part in the common business of the house. 

"He has a strong attachment to popularity but 
indisposed to sacrifice to it his integrity; hence it is 
that he is disposed on all popular subjects to feel the 
public pulse and hence results indecision and an 
expression of doubt. 

"Doubts suggested by him create in more feeble 
minds those which are irremovable. He is disposed 
... to express great respect for the sovereign peo- 
ple, and to quote their opinions as an evidence of 
truth. 

"The latter is of all things the most destructive 



484 JOHN MARSHALL 

of personal independence & of that weight of char- 
acter which a great man ought to possess. 

"This gentleman, when aroused, has strong rea- 
soning powers; they are almost unequalled. But 
before they are excited, he has frequently, nearly, 
destroyed any impression from them." 1 

Such was Marshall's work during his six months' 
service in Congress, the impression he made, and the 
estimate of him by his party friends. His " convivial 
habits, strongly fixed," his great good nature, his 
personal lovableness, were noted by his associates 
in the National House of Representatives quite as 
much as they had been observed and commented 
on by his fellow members in the Virginia Legislature 
and by his friends and neighbors in Richmond. 

The public qualities which his work in Congress 
again revealed in brilliant light were his extraordi- 
nary independence of thought and action, his utter 
fearlessness, and his commanding mental power. 
But his personal character and daily manners ap- 
plied a soothing ointment to any irritation which 
his official attitude and conduct on public questions 
created in the feelings of his associates. 

So came the day of adjournment of Congress; and 
with it the next step which Fate had arranged for 
John Marshall. 

1 Sedgwick to King, May 11, 1800; King, iii, 237. 



CHAPTER XII 

CHIEF JUSTICE OF THE UNITED STATES 

I consider General Marshall as more than a secretary — as a state conser- 
vator. (Oliver Woleott.) 

To Mr. Jefferson I have felt insuperable objections. The morals of the author 
of the letter to Mazzei cannot be pure. (Marshall.) 

You have given an opinion in exact conformity with the wishes of your 
party. Come forward and defend it. (George Hay to Marshall.) 

"The P. requests Mr. McHenry's company for 
one minute," wrote President Adams to his Secre- 
tary of War on the morning of May 5, 1800. 1 The 
unsuspicious McHenry at once responded. The 
President mentioned an unimportant departmental 
matter; and then, suddenly flying into a rage, abused 
his astounded Cabinet adviser in "outrageous" 2 
fashion and finally demanded his resignation. 3 The 
meek McHenry resigned. To the place thus made 
vacant, the harried President, without even con- 
sulting him, immediately appointed Marshall, who 
"as immediately declined." 4 Then Adams tendered 
the office to Dexter, who accepted. 

And resign, too, demanded Adams of his Secretary 

1 Adams to McHenry, May 5, 1800; Steiner, 453. 

2 McHenry to John McHenry, May 20, 1800; Gibbs, ii, 348. 

3 According to McHenry, Adams's complaints were that the Secre- 
tary of War had opposed the sending of the second mission to France, 
had not appointed as captain a North Carolina elector who had voted 
for Adams, had " eulogized General Washington . . . attempted 
to praise Hamilton," etc. (McHenry to John McHenry, May 20, 
1800; Gibbs, ii, 348; and see Hamilton's " Public Conduct, etc., of 
John Adams"; Hamilton: Works: Lodge, vii, 347-49.) 

* Gore to King, May 14, 1800; King, iii, 242-43; also Sedgwick to 
Hamilton, May 7, 1800; Works: Hamilton, vi, 437-38. 



486 JOHN MARSHALL 

of State. 1 The doughty Pickering refused 2 — "I did 
not incline to accept this insidious favor," 3 he re- 
ported to Hamilton. Adams dismissed him. 4 Again 
the President turned to Marshall, who, deeply trou- 
bled, considered the offer. The Federalist Cabinet 
was broken to pieces, and a presidential election was 
at hand which would settle the fate of the first great 
political party in American history. 

The campaign had already started. The political 
outlook was dark enough before the President's 
outburst; this shattering of his Cabinet was a wicked 
tongue of lightning from the threatening clouds 
which, after the flash, made them blacker still. 5 

Few Presidents have ever faced a more difficult 
party condition than did John Adams when, by a 
humiliating majority of only three votes, he was 
elected in 1796. He succeeded Washington; the 
ruling Federalist politicians looked to Hamilton as 
their party chieftain; even Adams's Cabinet, inher- 
ited from Washington, was personally unfriendly 
to the President and considered the imperious New 
York statesman as their supreme and real com- 
mander. " I had all the officers and half the crew 
always ready to throw me overboard," accurately 
declared Adams some years later. 6 

Adams's temperament was the opposite of Wash- 
ington's, to which the Federalist leaders had so long 

1 Adams to Pickering, May 10, 1800; Works: Adams, ix, 53. 

2 Pickering to Adams, May 11, 1800; ib., 54. 

3 Pickering to Hamilton, May 15, 1800; Works: Hamilton, vi, 443. 

4 Adams to Pickering, May 12, 1800; Works: Adams, ix, 55. 

5 Sedgwick to Hamilton, May 13, 1800; Works: Hamilton, vi, 442. 

6 Adams to Rusk, March 4, 1809; Old Family Letters, 219. 



CHIEF JUSTICE 487 

been accustomed that the change exasperated them. 1 
From the very beginning they bound his hands. The 
new President had cherished the purpose of calling 
to his aid the ablest of the Republicans, but found 
himself helpless. "When I first took the Chair," 
bitterly records Adams, "1 was extremely desirous 
of availing myself of Mr. Madison's abilities, . . . 
and experience. But the violent Party Spirit of 
Hamilton's Friends, jealous of every man who pos- 
sessed qualifications to eclipse him, prevented it. 
I could not do it without quarreling outright with 
my Ministers whom Washington's appointment had 
made my Masters." 2 

On the other hand, the high Federalist politicians, 
most of whom were Hamilton's adherents, felt that 
Adams entertained for their leader exactly the same 
sentiments which the President ascribed to them. 
"The jealousy which the P. [resident] has felt of 
H.[amilton] he now indulges toward P.[inckney], 
W 7 .[olcott] & to'd very many of their friends who are 
suspected of having too much influence in the Com- 
munity, & of not knowing how to appreciate his 

1 "There never was perhaps a greater contrast between two char- 
acters than between those of the present President & his predecessor. 
. . . The one [Washington] cool, considerate, & cautious, the other 
[Adams] headlong & kindled into flame by every spark that lights 
on his passions; the one ever scrutinizing into the public opinion and 
ready to follow where he could not lead it; the other insulting it by 
the most adverse sentiments & pursuits; W. a hero in the field, yet 
overweighing every danger in the Cabinet — A. without a single pre- 
tension to the character of a soldier, a perfect Quixotte as a states- 
man." (Madison to Jefferson, Feb., 1798; Writings: Hunt, vi, 310.) 
And [Adams] " always an honest man, often a wise one, but some- 
times wholly out of his senses." (Madison to Jefferson, June 10, 1798; 
ib„ 325.) 

8 Adams to Rush, Aug. 23, 1805; Old Family Letters, 76. 



488 JOHN MARSHALL 

[Adams's] merits. . . . The Consequence is that his 
ears are shut to his best real friends & open to Flat- 
terers, to Time servers & even to some Jacobins." 1 

Adams, the scholar and statesman, but never the 
politician, was the last man to harmonize these differ- 
ences. And Hamilton proved to be as inept as Adams. 

After the President had dispatched the second 
mission to France, Hamilton's followers, including 
Adams's Cabinet, began intriguing in a furtive and 
vicious fashion to replace him with some other Fed- 
eralist at the ensuing election. While, therefore, the 
President, as a personal matter, was more than 
justified in dismissing McHenry and Pickering (and 
Wolcott also 2 ) , he chose a fatal moment for the 
blow; as a matter of political strategy he should 
have struck sooner or not at all. 

At this late hour the great party task and duty 
of the President was, by any and every honorable 
means, to unite all Federalist factions for the im- 
pending battle with the eager, powerful, and disci- 
plined Republicans. Frank and full conference, 
tolerance, and conciliation, were the methods now 
required. These might not have succeeded, but at 
least they would not have irritated still more the 
ragged edges of party dissension. Not only did the 
exasperated President take the opposite course, but 
his manner and conduct were acid instead of oint- 
ment to the raw and angry wounds. 3 

1 Cabot to King, April 26, 1799; King, iii, 8. 

2 Wolcott was as malicious as, but more cautious than, Pickering 
in his opposition to the President. 

3 "He [Adams] is liable to gusts of passion little short of frenzy. . . . 
I speak of what I have seen." (Bayard to Hamilton, Aug. 18, 1800; 



CHIEF JUSTICE 489 

This, then, was the state of the Federalist Party, 
the frame of mind of the President, and the dis- 
tracted condition of the Cabinet, when Marshall was 
asked to become Secretary of State in the late spring 
of 1800. He was minded to refuse this high station 
as he had that of Secretary of War. "I incline to 
think Mr. Marshall will decline this office also," 
wrote McHenry to his brother. 1 If he accepted, he 
would be loyal to the President — his nature made 
anything else impossible. But he was the personal 
friend of all the Federalist leaders, who, in spite of 
his disapproval of the Alien and Sedition Laws and 
of his dissent from his party's plans in Congress, in 
spite, even, of his support of the President's detested 
second mission to France, 2 nevertheless trusted and 
liked him. 

The President's selection of Marshall had been 
anticipated by the Republicans. " General Marshall 
. . . has been nominated to hold the station of Sec- 
retary of War," said the "Aurora," in an article 
heavy with abuse of Pickering. "This . . . however, 
is said to be but preparatory to General Marshall's 
appointment to succeed Mr. Pickering who is 
expected to resign." 3 

Works: Hamilton, vi, 457.) " He would speak in such a manner ... as 
to persuade one that he was actually insane." (McHenry to John Mc- 
Henry, May 20, 1800; Gibbs, ii, 347.) "Mr. Adams had conducted 
strangely and unaccountably." (Ames to Hamilton, Aug. 26, 1800; 
Works: Ames, i, 280.) These men were Adams's enemies; but the extreme 
irritability of the President at this time was noted by everybody. Un- 
doubtedly this was increased by his distress over the illness of his wife. 

1 McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347. 

3 See preceding chapter. 

3 Aurora, May 9, 1800; the Aurora had been attacking Pickering 
with all the animosity of partisanship. 



490 JOHN MARSHALL 

Strangely enough the news of his elevation to the 
head of the Cabinet called forth only gentle criticism 
from the Republican press. "From what is said of 
Mr. Marshall," the "Aurora" thought that he was 
"as little likely to conciliate" France as Pickering. 
He "is well known to have been the disingenuous 
writer of all the X. Y. Z. Dispatches," which the 
Federalists had "confessed to be one of the best 
and most successful political tricks that was ever 
played off. . . . General Marshall's fineering and 
var[ni]shing capacity" was "well known," said the 
"Aurora." "General Marshall consequently has 
been nominated and appointed. ... In genuine 
federal principles, General Marshall is as inflexible 
as Mr. Pickering; but in the negotiation with 
France, the General may not have imbibed so strong 
prejudices — and, having been one of the Envoys 
to that Republic, he may be supposed to be more 
conversant with some of the points in dispute, 
than Col. Pickering, and consequently to be pre- 
ferred. 

"We find him very well spoken of in the reformed 
Gazettes of France, 9 ' continues the "Aurora," "which 
being now under guardianship * may be considered 
as speaking the language of the government — 
€ Le Bien Informed after mentioning the motion 
Gen. M. made in announcing to Congress the death 
of Gen. Washington, adds — 'This is the gentleman 
who some time since came as Envoy from the United 
States; and who so virtuously and so spiritedly re- 

1 The French press had been quite as much under the control of the 
Revolutionary authorities as it was under that of Bonaparte as First 
Consul or even under his rule when he had become Napoleon I. 



CHIEF JUSTICE 491 

fused to fill the pockets of some of our gentry with 
Dutch inscriptions, and millions of livres."' l 

For nearly two weeks Marshall pondered over the 
President's offer. The prospect was not inviting. It 
was unlikely that he could hold the place longer than 
three quarters of a year, for Federalist defeat in the 
presidential election was more than probable; and 
it seemed certain that the head of the Cabinet 
would gather political cypress instead of laurel in 
this brief and troubled period. Marshall consulted 
his friends among the Federalist leaders; and, finally, 
accepted the proffered portfolio. Thereupon the 
"Aurora," quoting Pickering's statement that the 
office of Secretary of State "was never better filled 
than by General Marshall," hopes that "Gen. Mar- 
shall will take care of his accounts ," which that 
Republican paper had falsely charged that Pickering 
had manipulated corruptly. 2 

Expressing the Republican temper the "Aurora" 
thus analyzes the new Federalist Cabinet: "The 
Secretary of the Treasury [Oliver Wolcott]" was 
"scarcely qualified to hold the second desk in a 

1 Aurora, May 27, 1800. 

2 76., June 4, 1800; and June 17, 1800. The Aurora now made 
a systematic campaign against Pickering. It had "substantial and 
damning facts" which it threatened to publish if Adams did not 
subject Pickering to a "scrutiny" (ib., May 21, 1800). Pickering was 
a "disgrace to his station" {ib., May 23): several hundred thousand 
dollars were " unaccounted for " (ib., June 4, and 17). 

The attack of the Republican newspaper was entirely political, 
every 'charge and innuendo being wholly false. Adams's dismissal 
of his Secretary of State was not because of these charges, but on 
account of the Secretary's personal and political disloyalty. Adams 
also declared, afterwards, that Pickering lacked ability to handle the 
grave questions then pending and likely to arise. (Cunningham 
Letters, nos. xii, xiii, and xiv.) But that was merely a pretense. 



492 JOHN MARSHALL 

Mercantile Counting-House"; the Attorney-Gen- 
eral [Charles Lee] was "without talents"; the Sec- 
retary of the Navy [Benjamin Stoddert] was "a 
small Georgetown politician . . . cunning, gossip- 
ing, . . . of no . . . character or . . . principles"; the 
Secretary of War [Samuel Dexter] was no more fit 
for the place than "his mother"; and Marshall, 
Secretary of State, was "more distinguished as a 
rhetorician and a sophist than as a lawyer and a 
statesman — sufficiently pliant to succeed in a cor- 
rupt court, too insincere to command respect, or 
confidence in a republic." However, said the 
"Aurora," Adams was "able to teach Mr. Marshall 
Tart diplomatique.'" l 

Some of the Federalist leaders were not yet con- 
vinced, it appears, of Marshall's party orthodoxy. 
Pinckney reassures them. Writing from Virginia, 
he informs McHenry that "Marshall with reluc- 
tance accepts, but you may rely on his federalism, & 
be certain that he will not unite with Jefferson & 
the Jacobins." 2 Two months later even the Guy 
Fawkes of the Adams Cabinet declares himself more 
than satisfied: "If the gentlemen now in office 
[Marshall and Dexter] had declined," declares Wol- 
cott, "rage, vexation & despair would probably 
have occasioned the most extravagant conduct 3 [on 
the part of the President]." After Marshall had been 
at the head of the Cabinet for four months, Cabot 
writes that "Mr. Wolcott thinks Mr. Marshall 
accepted the secretaryship from good motives, and 

1 Aurora, June 12, 1800. 

2 Pinckney to McHenry, June 10, 1800; Steiner, 460. 
F Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 402. 



CHIEF JUSTICE 493 

with a view of preserving union, and that he and 
Dexter, by accepting, have rendered the nation great 
service; for, if they had refused, we should have had 
— Heaven alone knows whom! He thinks, however, 
as all must, that under the present chief they will be 
disappointed in their hopes, and that if Jefferson is 
President they will probably resign." * 

In view of "the temper of his [Adams's] mind," 
which, asserts the unfaithful Wolcott, was "revolu- 
tionary, violent, and vindictive, . . . their [Marshall's 
and Dexter's] acceptance of their offices is the best 
evidence of their patriotism. ... I consider Gen. 
Marshall and Mr. Dexter as more than secretaries — 
as state conservators — the value of whose services 
ought to be estimated, not only by the good they do, 
but by the mischief they have prevented. If I am 
not mistaken, however, Gen. Marshall will find him- 
self out of his proper element." 2 

No sooner was Marshall in the Secretary's chair 
than the President hastened to his Massachusetts 
home and his afflicted wife. Adams's part in direct- 
ing the Government was done by correspondence. 3 
Marshall took up his duties with his characteristi- 
cally serious, yet nonchalant, patience. 

The National Capital had now been removed to 
Washington; and here, during the long, hot summer 

1 Cabot to Gore, Sept. 30, 1800; Lodge: Cabot, 291. 

2 Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 401-02. 

3 Adams's correspondence shows that the shortest time for a letter 
to go from Washington to Quincy, Massachusetts, was seven days, 
although usually nine days were required. " Last night I received your 
favor of the 4th." (Adams at Quincy to Dexter at Washington, Aug. 
13, 1800; Works: Adams, ix, 76; and to Marshall, Aug. 14; ib., 77; 
and Aug. 26; ib., 78; and Aug. 30; ib., 80.) 



494 JOHN MARSHALL 

of 1800, Marshall remained amidst the steaming 
swamps and forests where the "Federal City" was 
yet to be built. 1 Not till October did he leave his 
post, and then but briefly and on urgent private 
business. 2 

The work of the State Department during this 
period was not onerous. Marshall's chief occupa- 
tion at the Capital, it would appear, was to act as 
the practical head of the Government; and even his 
political enemies admitted that he did this well. 
Jefferson's most partial biographer says that "un- 
der the firm and steady lead [of Marshall and Dex- 
ter] . . . the Government soon acquired an order, 
system, and character which it never had before 
possessed." 3 Still, enough routine business came to 
his desk to give the new Secretary of State something 
to do in his own department. 

Office-seeking, which had so annoyed Washing- 
ton, still vexed Adams, although but few of these 
hornets' nests remained for him to deal with. 
"Your knowledge of persons, characters, and cir- 
cumstances," wrote the President to Marshall con- 
cerning the applications for the office of United 
States Marshal for Maryland, "are so much better 
than mine, and my confidence in your judgment and 

1 Washington at this time was forest, swamp, and morass, with only 
an occasional and incommodious house. Georgetown contained the 
only comfortable residences. For a description of Washington at this 
period, see chap, i, vol. m, of this work. 

2 Marshall to Adams, Sept. 17, 1800; Adams MSS. This trip was 
to argue the case of Mayo vs. Bentley (4 Call, 528), before the Court 
of Appeals of Virginia. (See supra, chap, vi.) 

3 Randall, ii, 547. Although Randall includes Dexter, this tribute is 
really to Marshall who was the one dominating character in Adams's 
reconstructed Cabinet. 



CHIEF JUSTICE 495 

impartiality so entire, that I pray you . . . give 
the commission to him whom you may prefer." x 
Adams favored the son of Judge Chase; but, on the 
advice of Stoddert of Maryland, who was Secretary 
of the Navy, Marshall decided against him: "Mr. 
Chase is a j^oung man who has not yet acquired the 
public confidence and to appoint him in preference 
to others who are generally known and esteem'd, 
might be deem'd a mere act of favor to his Father. 
Mr. Stoddert supposes it ineligible to accumulate, 
without superior pretensions, offices in the same 
family." 2 

Marshall generally trimmed his sails, however, 
to the winds of presidential preference. He un- 
doubtedly influenced the Cabinet, in harmony with 
the President's wish, to concur in the pardon of 
Isaac Williams, convicted, under the Jay Treaty, 
of waging war on the high seas against Great Brit- 
ain. Williams, though sailing under a French com- 
mission, was a pirate, and accumulated much wealth 
from his indiscriminate buccaneering. 3 But the 
President wrote Marshall that because of "the man's 
generosity to American prisoners," and "his present 
poverty and great distress," he desired to pardon 
Williams. 4 

Marshall informed the President that "repeated 

1 Adams to Marshall, July 30, 1800; Works: Adams, ix, 66; also 
Marshall to Adams, Aug. 1, Aug. 2, and July 29, 1800; Adams MSS. 

2 Marshall to Adams, July 29, 1800; Adams MSS. This cost Adams 
the support of young Chase's powerful father. (McHenry to John 
McHenry, Aug. 24, 1800; Gibbs, ii, 408.) 

3 McMaster, ii, 448. 

4 Adams to Marshall, Aug. 7, 1800; Works: Adams, ix, 72; and 
Marshall to Adams, Aug. 16, 1800; Adams MSS. Chief Justice 



496 JOHN MARSHALL 

complaints are made to this department of the 
depredations committed by the Spaniards on the 
American commerce." * The French outrages were 
continuing; indeed, our naval war with France had 
been going on for months and Spain was aiding the 
French. An American vessel, the Rebecca Henry, 
had been captured by a French privateer. Two 
Yankee sailors killed the French prize master in 
recapturing the vessel, which was taken again by 
another French sea rover and conveyed into a 
Spanish port. The daring Americans were impris- 
oned and threatened with death. Marshall thought 
"proper to remonstrate and to threaten retaliation 
if the prisoners should be executed." 2 

The French ship Sandwich was captured by Cap- 
tain Talbot, an American officer, in a Spanish port 
which Spain had agreed to transfer to France. 
Marshall considered this a violation of our treaty 
with Spain. "I have therefore directed the Sand- 
wich to be given up to the minister of his Catholic 
Majesty," 3 he advised the President. The Spanish 
Minister thanked Marshall for his "justice" and 
"punctuality." 4 

But Talbot would not yield his prize; the United 

Ellsworth presided at the trial of Williams, who was fairly convicted. 
(Wharton: State Trials, 652-58.) The Republicans, however, charged 
that it was another "political" conviction. It seems probable that 
Adams's habitual inclination to grant the request of any one who was 
his personal friend (Adams's closest friend, Governor Trumbull, had 
urged the pardon) caused the President to wish to extend clemency 
to Williams. 

1 Marshall to Adams, June 24, 1800; Adams MSS. 

2 Marshall to Adams, Aug. 2, 1800; ib. 

3 Marshall to Adams, July 26, 1800; ib. 

4 De Yrujo to Marshall, July 31, 1800; ib. 



CHIEF JUSTICE 497 

States Marshal declined to act. Marshall took 
"measures 1 which will," he reported to the Presi- 
dent, "I presume occasion the delivery of this vessel, 
unless . . . the government has no right to interpose, 
so far as captors are interested." Talbot's attitude 
perplexed Marshall; for, wrote he, "if the Execu- 
tive of the United States cannot restore a vessel 
captured by a national ship, in violation of the law 
of nations, . . . cause for war may be given by those 
who, of al] others, are, perhaps, most apt to give it, 
and that department of the government, under 
whose orders they are plac'd will be unable to cor- 
rect the mischief." 2 

That picturesque adventurer, Bowles, whose plots 
and activities among the Indians had been a thorn 
to the National Government since the early part of 
Washington's Administration, 3 again became annoy- 
ing. He was stirring up the Indians against the 
Spanish possessions in Florida and repeated his 
claim of having the support of Great Britain. The 
Spaniards eagerly seized on this as another pretext 
for annoying the American Government. Measures 
were taken to break Bowles's influence with the 
Indians and to suppress the adventurer's party. 4 

But, although the President was of the opinion 
that "the military forces . . . should join [the Span- 

1 Marshall does not state what these measures were. 

2 Marshall to Adams, Sept. 6, 1800; Adams MSS. 

8 Am. St. Prs„ v, Indian Affairs, i, 184, 187, 246. For picturesque 
description of Bowles and his claim of British support see Craig's 
report, ib., 264; also, 305. Bowles was still active in 1801. (lb., 
651.) 

4 Adams to Marshall, July 31, 1800; Works: Adams, ix, 67; Mar- 
shall to De Yrujo, Aug. 15, 1800; Adams MSS. 



498 JOHN MARSHALL 

iards] in an expedition against Bowles," x Marshall 
did not think "that the Spaniards require any mili- 
tary aid; nor," continues he, "do I suppose they 
would be willing to receive it. . . . American troops 
in either of the Floridas wou'd excite very much 
their jealousy, especially when no specific requisi- 
tion for them has been made, and when their own 
force is entirely competent to the object." 2 

Liston, the British Minister, assured Marshall 
that the British Government had no connection 
with Bowles. 3 But, irritated by gossip and news- 
paper stories, he offensively demanded that Mar- 
shall "meet these insidious calumnies by a flat and 
formal contradiction." 4 Without waiting for the 
President's approval, Marshall quickly retorted : 5 
the "suspicions . . . were not entirely unsupported 
by appearances." Newspaper "charges and sur- 
mises . . . are always causes of infinite regret" to the 
Government "and wou'd be prevented if the means 
of prevention existed." But, said Marshall, the 
British Government itself was not blameless in that 
respect; "without going far back you may find ex- 
amples in your own of the impunity with which a 
foreign friendly nation [America] may be grossly li- 
bel'd." As to the people's hostility to Great Britain, 
he tartly reminded the British Minister that "in 
examining the practice of your officers employ 'd in 
the business of impressment, and of your courts 
of Vice Admiralty, you will perceive at least some 

1 Adams to Marshall, Aug. 11, 1800; Works: Adams, ix, 73. 

2 Marshall to Adams, Aug. 12, 1800; Adams MSS. 3 lb. 
4 Liston to Marshall, Aug. 25, 1800; t'6. 

8 Marshall to Adams, Sept. 6, 1800; ib. 



CHIEF JUSTICE 499 

of the causes, by which this temper may have been 
produc'd." l 

Sweden and Denmark proposed to maintain, 
jointly with the United States, a naval force in the 
Mediterranean to protect their mutual commerce 
from the Barbary Powers. Marshall declined be- 
cause of our treaties with those piratical Govern- 
ments; and also because, "until . . . actual hostilities 
shall cease between" France and America, "to sta- 
tion American frigates in the Mediterranean would 
be a hazard, to which our infant Navy ought not 
perhaps to be exposed." 2 

Incidents amusing, pathetic, and absurd arose, 
such as announcements of the birth of princes, to 
which the Secretary of State must prepare answers; 3 

1 Marshall to Liston, Sept. 6, 1800; Adams MSS. 

2 Marshall to J. Q. Adams, July 24, 1800; MS. It is incredible that 
the Barbary corsairs held the whole of Europe and America under 
tribute for many years. Although our part in this general submission 
to these brigands of the seas was shameful, America was the first 
to move against them. One of Jefferson's earliest official letters after 
becoming President was to the Bey of Tripoli, whom Jefferson ad- 
dressed as "Great and Respected Friend . . . Illustrious & honored 
. . . whom God preserve." Jefferson's letter ends with this fervent 
invocation: "I pray God, very great and respected friend, to have 
you always in his holy keeping." (Jefferson to Bey of Tripoli, May 
21, 1801; Am. St. Prs., For. Rel., ii, 349.) 

And see Jefferson to Bey of Tunis (Sept. 9, 1801; ib., 358), in which 
the American President addresses this sea robber and holder of Ameri- 
cans in slavery, as "Great and Good Friend" and apologizes for delay 
in sending our tribute. In Jefferson's time, no notice was taken of such 
expressions, which were recognized as mere forms. But ninety years 
later the use of this exact expression, "Great and Good Friend," ad- 
dressed to the Queen of the Hawaiian Islands, was urged on the stump 
and in the press against President Cleveland in his campaign for re- 
election. For an accurate and entertaining account of our relations 
with the Barbary pirates see Allen: Our Navy and the Barbary 
Corsairs. 
, 3 Marshall to Adams, Aug. 1, 1800; Adams MSS. 



500 JOHN MARSHALL 

the stranding of foreign sailors on our shores, whose 
plight we must relieve; * the purchase of jewels for 
the Bey of Tunis, who was clamoring for the glitter- 
ing bribes. 2 

In such fashion went on the daily routine work 
of his department while Marshall was at the head of 
the Cabinet. 

The only grave matters requiring Marshall's at- 
tention were the perplexing tangle of the British 
debts and the associated questions of British im- 
pressment of American seamen and interference 
with American commerce. 

Under the sixth article of the Jay Treaty a joint 
commission of five members had been appointed 
to determine the debts due British subjects. Two 
of the Commissioners were British, two Americans, 
and the fifth chosen by lot. Chance made this de- 
ciding member British also. This Commission, sit- 
ting at Philadelphia, failed to agree. The treaty 
provided, as we have seen, that the United States 
should pay such British debts existing at the out- 
break of the Revolutionary War as the creditors 
were not able to collect because of the sequestra- 
tion laws and other "legal impediments," or be- 
cause, during the operation of these statutes, the 
debtor had become insolvent. 

Having a majority of the Commission, the British 
members made rules which threw the doors wide 

1 Marshall to Adams, June 24, 1800; Adams MSS. 

2 Marshall to Adams, Aug. 16, 1800; July 24, 1800; lb. and 
see Adams to Marshall, Aug. 2, and to Secretary of State, May 25; 
King, iii, 243-46. The jewels were part of our tribute to the Barbary 
pirates. 



CHIEF JUSTICE 501 

open. 1 "They go the length to make the United 
States at once the debtor for all the outstanding debts 
of British subjects contracted before the peace of 
1783. . . . The amount of the claims presented ex- 
ceeds nineteen millions of dollars." 2 And this was 
done by the British representatives with overbearing 
personal insolence. Aside from the injustice of the 
British contention, this bullying of the American 
members 3 made the work of the Commission all 
but impossible. 

A righteous popular indignation arose. "The con- 
struction put upon the Treaty by the British Com- 
missioners . . . will never be submitted to by this 
country. . . . The [British] demand . . . excites much 
ill blood." 4 The American Commissioners refused 
to attend further sittings of the Board. Thereupon, 
the British Government withdrew its members of the 
associate Commission sitting in London, under the 
seventh article of the treaty, to pass upon claims 
of American citizens for property destroyed by the 
British. 

The situation was acute. It was made still sharper 
by the appointment of our second mission to France. 
For, just as France had regarded Jay's mission and 
treaty as offensive, so now Great Britain looked upon 

1 King to Secretary of State, Oct. 11, 1799; note to Grenville; King, 
iii, 129. 

2 Secretary of State to King, Feb. 5, 1799; Am. St. Prs., For. Rel., 
ii, 383. Hildreth says that the total amount of claims filed was 
twenty-four million dollars. (Hildreth, v, 331; and see Marshall to 
King, infra.) 

3 Secretary of State to King, Sept. 4, 1799; Am. St. Prs., For. Rel, 
ii, 383. 

* Troup to King, Sept. 2, 1799; King, iii, 91. 



502 JOHN MARSHALL 

the Ellsworth mission as unfriendly. As a way out 
of the difficulty, the American Government insisted 
upon articles explanatory of the sixth article of the 
Jay Treaty which would define exactly what claims 
the Commission should consider. 1 The British Gov- 
ernment refused and suggested a new commission. 2 

This was the condition that faced Marshall when 
he became Secretary of State. War with Great Brit- 
ain was in the air from other causes and the rup- 
ture of the two Commissions made the atmosphere 
thicker. On June 24, 1800, Marshall wrote the Pres- 
ident that we ought "still to press an amicable 
explanation of the sixth article of our treaty"; 
perhaps during the summer or autumn the British 
Cabinet might feel "more favorable to an accom- 
modation." But he "cannot help fearing that . . . 
the British Ministry" intends "to put such a con- 
struction on the law of nations ... as to throw into 
their hands some equivalent to the probable claims 
of British creditors on the United States." 3 

Lord Grenville then suggested to Rufus King, our 
Minister at London, that the United States pay a 
gross sum to Great Britain in settlement of the whole 
controversy. 4 Marshall wondered whether this sim- 
ple way out of the tangle could "afford just cause of 
discontent to France? " 5 Adams thought not. " We 
surely have a right to pay our honest debts in the 

1 Secretary of State to King, Dec. 31, 1799; Am. St. Prs., For. Rel, 
ii, 384-85. 

2 King to Secretary of State, April 7, 1800; King, iii, 215. 

3 Marshall to Adams, June 24, 1800; Adams MSS. 

4 King to Secretary of State, April 22, 1800; King, iii, 222. 
s Marshall to Adams, July 21, 1800; Adams MSS. 



CHIEF JUSTICE 503 

manner least inconvenient to ourselves and no for- 
eign power has anything to do with it," said the 
President. Adams, however, foresaw many other 
difficulties; x but Marshall concluded that, on the 
whole, a gross payment was the best solution in case 
the British Government could not be induced to 
agree to explanatory articles. 2 

Thereupon Marshall wrote his memorable instruc- 
tions to our Minister to Great Britain. In this, as in 
his letters to Talleyrand two years earlier, and in the 
notable one on British impressment, contraband, 
and freedom of the seas, 3 he shows himself an Ameri- 
can in a manner unusual at that period. Not the 
least partiality does he display for any foreign 
country; he treats them with exact equality and de- 
mands from all that they shall deal with the Ameri- 
can Government as a Nation, independent of and 
unconnected with any of them. 4 

The United States, writes Marshall, "can never 
submit to" the resolutions adopted by the British 
Commissioners, which put "new and injurious bur- 
thens" upon the United States "unwarranted by 
compact," and to which, if they had been stated in 
the treaty, "this Government never could and never 
would have assented." Unless the two Governments 
can "forget the past," arbitration cannot be success- 
ful; it is idle to discuss who committed the first fault, 
he says, when two nations are trying to adjust their 
differences. 

1 Adams to Marshall, Aug. 1, 1800; Works: Adams, ix, 68-69. 

2 Marshall to Adams, Aug. 12, 1800; Adams MSS. 

3 Infra, 507 et seq. 

4 Am. St. Prs., For. Ed., ii, 386. 



504 JOHN MARSHALL 

The American Commissioners, declares Marshall, 
withdrew from the Board because the hostile major- 
ity established rules under which "a vast mass of 
cases never submitted to their consideration" could 
and would be brought in against American citizens. 
The proceedings of the British Commissioners were 
not only "totally unauthorized," but "were con- 
ducted in terms and in a spirit only calculated to 
destroy all harmony between the two nations." 

The cases which the Board could consider were 
distinctly and specifically stated in the fifth article 
of the treaty. Let the two Governments agree to an 
explanation, instead of leaving the matter to wrang- 
ling commissioners. But, if Minister King finds that 
the British Government will not agree to explana- 
tory articles, he is authorized to substitute "a gross 
sum in full compensation of all claims made or to be 
made on this Government." 

It would, of course, be difficult to agree upon the 
amount. "The extravagant claims which the British 
creditors have been induced to file," among which 
"are cases ... so notoriously unfounded that no 
commissioners retaining the slightest degree of self- 
respect can establish them; . . . others where the 
debt has been fairly and voluntarily compromised 
by agreement between creditor and debtor"; others 
"where the money has been paid in specie, and 
receipts in full given"; and still others even worse, 
all composing that "enormous mass of imagined 
debt," will, says Marshall, make it hard to agree on 
a stated amount. 1 

1 Am. St. Prs., For. Rel., ii, 387. 



CHIEF JUSTICE 505 

The British creditors, he asserts, had been and 
then were proceeding to collect their debts through 
the American courts, and "had they not been se- 
duced into the opinion that the trouble and expense 
inseparable from the pursuit of the old debts, might 
be avoided by one general resort to the United 
StaLv-a, it is believed they would have been still more 
rapidly proceeding in the collection of the very 
claims, so far as they are just, which have been filed 
with the commissioners. They meet with no objec- 
tion, either of law or fact, which are not common to 
every description of creditors, in every country. . . . 
Our judges are even liberal in their construction of 
the 4th article of the treaty of peace" and have 
shown "no sort of partiality for the debtors." 

Marshall urges this point with great vigor, and 
concludes that, if a gross amount can be agreed 
upon, the American Minister must see to it, of course, 
that this sum is made as small as possible, not "to 
exceed one million sterling" in any event. 1 In a 
private letter, Marshall informs King that "the best 
opinion here is that not more than two million Dol- 
lars could justly be chargeable to the United States 
under the treaty." 2 

Adams was elated by Marshall's letter. "I know 
not," he wrote, "how the subject could have been 
better digested." 3 

1 Am. St. Prs., For. Rel., ii, 387. 

2 Marshall to Adams, Sept. 9, 1800; Adams MSS. 

3 Adams to Marshall, Sept. 18, 1800; Works: Adams, ix, 84. After 
Jefferson became President and Madison Secretary of State, King 
settled the controversy according to these instructions of Marshall. 
But the Republicans, being then in power, claimed the credit. 



506 JOHN MARSHALL 

Almost from the exchange of ratifications of the 
Jay compact, impressment of American seamen by 
the British and their taking from American ships, as 
contraband, merchandise which, under the treaty, 
was exempt from seizure, had injured American 
commerce and increasingly irritated the American 
people. 1 The brutality with which the British prac- 
ticed these depredations had heated still more Amer- 
ican resentment, already greatly inflamed. 2 

In June, 1799, Marshall's predecessor had in- 
structed King "to persevere ... in denying the 
right of British Men of War to take from our Ships 
of War any men whatever, and from our merchant 
vessels any Americans, or foreigners, or even Eng- 
lishmen." 3 But the British had disregarded the 
American Minister's protests and these had now 
been entirely silenced by the break-up of the Brit- 
ish Debts Commissions. 

Nevertheless, Marshall directed our Minister at 

1 Secretary of State to King, Oct. 26, 1796; King, ii, 102. 

2 For a comprehensive though prejudiced review of British policy 
during this period see Tench Coxe: Examination of the Conduct of Great 
Britain Respecting Neutrals. Coxe declares that the purpose and pol- 
icy of Great Britain were to "monopolize the commerce of the world. 
. . . She denies the lawfulness of supplying and buying from her ene- 
mies, and, in the face of the world, enacts statutes to enable her own 
subjects to do these things. (lb., 62.) . . . She now aims at the Mon- 
archy of the ocean. . . . Her trade is war. . . . The spoils of neutrals 
fill her warehouses, while she incarcerates their bodies in her floating 
castles. She seizes their persons and property as the rich fruit of 
bloodless victories over her unarmed friends." (lb., 72.) 

This was the accepted American view at the time Marshall wrote his 
protest; and it continued to be such until the War of 1812. Coxe's book 
is packed closely with citations and statistics sustaining his position. 

3 Secretary of State to King, June 14, 1799; King, iii, 47; and see 
King to Secretary of State, July 15, 1799; ib., 58-59; and King to 
Grenville, Oct. 7, 1^99; ib., 115-21. 



CHIEF JUSTICE 507 

the Court of St. James to renew the negotiations. In 
a state paper which, in ability, dignity, and elo- 
quence, suggests his famous Jonathan Robins speech 
and equals his memorial to Talleyrand, he examines 
the vital subjects of impressment, contraband, and 
the rights of neutral commerce. 

It was a difficult situation that confronted the 
American Secretary of State. He had to meet and 
if possible modify the offensive, determined, and 
wholly unjust British position by a statement of 
principles based on fundamental right; and by an 
assertion of America's just place in the world. 

The spirit of Marshall's protest to the British Gov- 
ernment is that America is an independent nation, 
a separate and distinct political entity, with equal 
rights, power, and dignity with all other nations x — a 
conception then in its weak infancy even in America 
and, apparently, not entertained by Great Britain or 
France. These Powers seemed to regard America, 
not as a sovereign nation, but as a sort of subordinate 
state, to be used as they saw fit for their plans and 
purposes. 

But, asserts Marshall, "the United States do not 
hold themselves in any degree responsible to France 
or to Britain for their negotiations with the one or 
the other of these Powers, but are ready to make 
amicable and reasonable explanations with either. 
. . . An exact neutrality . . . between the belligerent 
Powers" is the "object of the American Govern- 
ment. . . . Separated far from Europe, we mean not 
to mingle in their quarrels. . . . We have avoided 

1 This complete paper is in Am. St. Prs., For. Rel., ii, 486-90. 



508 JOHN MARSHALL 

and we shall continue to avoid any . . . connections 
not compatible with the neutrality we profess. . . . 
The aggressions, sometimes of one and sometimes of 
another belligerent power have forced us to con- 
template and prepare for war as a probable event. 
. . . But this is a situation of necessity, not of choice." 
France had compelled us to resort to force against 
her, but in doing so "our preference for peace was 
manifest"; and now that France makes friendly 
advances, "America meets those overtures, and, in 
doing so, only adheres to her pacific system." 

Marshall lays down those principles of interna- 
tional conduct which have become the traditional 
American policy. Reviewing our course during the 
war between France and Great Britain, he says: 
" When the combination against France was most for- 
midable, when, if ever, it was dangerous to acknowl- 
edge her new Government" and maintain friendly 
relations with the new Republic, "the American 
Government openly declared its determination to 
adhere to that state of impartial neutrality which it 
has ever since sought to maintain; nor did the clouds 
which, for a time, lowered over the fortunes of the 
[French] Republic, in any degree shake this resolu- 
tion. When victory changed sides and France, in 
turn, threatened those who did not arrange them- 
selves under her banners, America, pursuing with 
undeviating step the same steady course," neverthe- 
less made a treaty with Great Britain; "nor could 
either threats or artifices prevent its ratification." 

"At no period of the war," Marshall reminds the 
British Government, "has France occupied such 



CHIEF JUSTICE 509 

elevated ground as at the very point of time when 
America armed to resist her: triumphant and vic- 
torious everywhere, she had dictated a peace to her 
enemies on the continent and had refused one to 
Britain." On the other hand, "in the reverse of her 
fortune, when defeated both in Italy and on the 
Rhine, in danger of losing Holland, before the vic- 
tory of Massena had changed the face of the last 
campaign, and before Russia had receded from the 
coalition against her, the present negotiation [be- 
tween America and France] was resolved on. Dur- 
ing this pendency," says Marshall, "the state of the 
war has changed, but the conduct of the United 
States" has not. 

"Our terms remain the same: we still pursue peace. 
We still embrace it, if it can be obtained without 
violating our national honor or our national faith; 
but we will reject without hesitation all propositions 
which may compromit the one or the other." 

All this, he declares, "shows how steadily it [the 
American Government] pursues its system [Neu- 
trality and peace] without regarding the dangers, 
from the one side or the other, to which the pur- 
suit may be exposed. The present negotiation with 
France is a part of this system, and ought, therefore, 
to excite in Great Britain no feelings unfriendly to 
the United States." 

Marshall then takes up the British position as to 
contraband of war. He declares that even under the 
law of nations, "neutrals have a right to carry on 
their usual commerce; belligerents have a right to 
prevent them from supplying the enemy with instru- 



510 JOHN MARSHALL 

ments of war." But the eighteenth article of the 
treaty itself covered the matter in express terms, 
and specifically enumerated certain things as con- 
traband and also "generally whatever may serve 
directly to the equipment of vessels." Yet Great 
Britain had ruthlessly seized and condemned Amer- 
ican vessels regardless of the treaty — had actually 
plundered American ships of farming material upon 
the pretense that these articles might, by some re- 
mote possibility, be used "to equip vessels." The 
British contention erased the word "directly" 1 from 
the express terms of the treaty. "This construction 
we deem alike unfriendly and unjust," he says. Such 
"garbling a compact ... is to substitute another 
agreement for that of the parties. ..." 

"It would swell the list of contraband to" suit 
British convenience, contrary to "the laws and 
usages of nations. ... It would prohibit . . . articles 
. . . necessary for the ordinary occupations of men in 
peace" and require "a surrender, on the part of the 
United States, of rights in themselves unquestion- 
able, and the exercise of which is essential to them- 
selves. ... A construction so absurd and so odious 
ought to be rejected." 2 

Articles, "even if contraband," should not be con- 
fiscated, insists Marshall, except when "they are 
attempted to be carried to an enemy." For instance, 

1 At one place the word "distinctly" is used and at another the 
word "directly," in the American State Papers (ii, 487 and 488). The 
word "directly" is correct, the word "distinctly" being a misprint. 
This is an example of the inaccuracies of these official volumes, which 
must be used with careful scrutiny. 

2 Am. St. Prs., For. Rel, ii, 488. 



CHIEF JUSTICE 511 

"vessels bound to New Orleans and laden with 
cargoes proper for the ordinary use of the citizens 
of the United States who inhabit the Mississippi 
and its waters . . . cannot be justly said to carry 
those cargoes to an enemy. . . . Such a cargo is not 
a just object of confiscation, although a part of it 
should also be deemed proper for the equipment of 
vessels, because it is not attempted to be carried to 
an enemy." 

On the subject of blockade, Marshall questions 
whether "the right to confiscate vessels bound to a 
blockaded port . . . can be applied to a place not 
completely invested by land as well as by sea." But 
waiving "this departure from principle," the Amer- 
ican complaint "is that ports not effectually block- 
aded by a force capable of completely investing 
them, have yet been declared in a state of blockage, 
and vessels attempting to enter therein have been 
seized, and, on that account, confiscated." This 
"vexation . . . may be carried, if not resisted, to a 
very injurious extent." 

If neutrals submit to it, "then every port of the 
belligerent powers may at all times be declared in 
that [blockaded] state and the commerce of neutrals 
be thereby subjected to universal capture." But if 
complete blockage be required, then "the capacity 
to blockade will be limited by the naval force of the 
belligerent, and, of consequence, the mischief to 
neutral commerce can not be very extensive. It is 
therefore of the last importance to neutrals that this 
principle be maintained unimpaired." 

The British Courts of Vice-Admiralty, says 



512 JOHN MARSHALL 

Marshall, render "unjust decisions" in the case of 
captures. "The temptation which a rich neutral 
commerce offers to unprincipled avarice, at all times 
powerful, becomes irresistible unless strong and 
efficient restraints be imposed by the Government 
which employs it." If such restraints are not im- 
posed, the belligerent Government thereby "causes 
the injuries it tolerates." Just this, says Marshall, 
is the case with the British Government. 

For " the most effectual restraint is an impartial 
judiciary, which will decide impartially between the 
parties and uniformly condemn the captor in costs 
and damages, where the seizure has been made 
without probable cause." If this is not done, "in- 
discriminate captures will be made." If an "unjust 
judge" condemns the captured vessel, the profit is 
the captor's; if the vessel is discharged, the loss falls 
upon the owner. Yet this has been and still is the inde- 
fensible course pursued against American commerce. 

"The British Courts of Vice Admiralty, whatever 
may be the case, seldom acquit and when they do, 
costs and damages for detention are never awarded.'* 
Marshall demands that the British Government 
shall "infuse a spirit of justice and respect for law 
into the Courts of Vice Admiralty" — this alone, he 
insists, can check "their excessive and irritating 
vexations. . . . This spirit can only be infused by 
uniformly discountenancing and punishing those 
who tarnish alike the seat of justice and the honor of 
their country, by converting themselves from judges 
into mere instruments of plunder." And Marshall 
broadly intimates that these courts are corrupt. 



CHIEF JUSTICE 513 

As to British impressment, "no right has been 
asserted to impress" Americans; "yet they are 
impressed, they are dragged on board British ships 
of war with the evidence of citizenship in their 
hands, and forced by violence there to serve until 
conclusive testimonials of their birth can be ob- 
tained." He demands that the British Government 
stop this lawless, violent practice "by punishing and 
frowning upon those who perpetrate it. The mere 
release of the injured, after a long course of service 
and of suffering, is no compensation for the past and 
no security for the future. . . . The United States 
therefore require positively that their seamen . . . 
be exempt from impressments." Even "alien sea- 
men, not British subjects, engaged in our merchant 
service ought to be equally exempt with citizens 
from impressments. . . . Britain has no pretext of 
right to their persons or to their service. To tear 
them, then, from our possession is, at the same time, 
an insult and an injury. It is an act of violence for 
which there exists no palliative." 

Suppose, says Marshall, that America should do 
the things Great Britain was doing? "Should we 
impress from the merchant service of Britain not 
only Americans but foreigners, and even British 
subjects, how long would such a course of injury, 
unredressed, be permitted to pass unrevenged? 
How long would the [British] Government be con- 
tent with unsuccessful remonstrance and unavailing 
memorials?" 

Or, were America to retaliate by inducing Brit- 
ish sailors to enter the more attractive American 



514 JOHN MARSHALL 

service, as America might lawfully do, how would 
Great Britain look upon it? Therefore, concludes 
Marshall, "is it not more advisable to desist from, 
and to take effectual measures to prevent an ac- 
knowledged wrong, than be perseverant in that 
wrong, to excite against themselves the well founded 
resentment of America, and to force our Govern- 
ment into measures which may possibly terminate 
in an open rupture?" 1 

Thus boldly and in justifiably harsh language 
did Marshall assert American rights as against 
British violation of them, just as he had similarly up- 
held those rights against French assault. Although 
France desisted from her lawless practices after 
Adams's second mission negotiated with Bonaparte 
an adjustment of our grievances, 2 Great Britain 
persisted in the ruthless conduct which Marshall and 
his successors denounced until, twelve years later, 
America was driven to armed resistance. 

Working patiently in his stuffy office amidst the 
Potomac miasma and mosquitoes during the swel- 
tering months, it was Marshall's unhappy fate to 
behold the beginning of the break-up of that great 
party which had built our ship of state, set it upon 
the waters, navigated it for twelve tempestuous 
years, through the storms of domestic trouble and 
foreign danger. 3 He was powerless to stay the 

1 Am. St. Prs., For. Rel, ii, 490. 2 Infra, 524. 

3 While political parties, as such, did not appear until the close of 
Washington's first Administration, the Federalist Party of 1800 was 
made up, for the most part, of substantially the same men and inter- 
ests that forced the adoption of the Constitution and originated all 
the policies and measures, foreign and domestic, of the first three 
Administrations. 



CHIEF JUSTICE 515 

Federalist disintegration. Even in his home district 
Marshall's personal strength had turned to water, 
and at the election of his successor in Congress, his 
party was utterly crushed. "Mr. Mayo, who was 
proposed to succeed Gen. Marshall, lost his election 
by an immense majority," writes the alert Wolcott; 
"was grossly insulted in public by a brother-in-law T 
of the late Senator Taylor, and was afterwards 
wounded by him in a duel. This is a specimen of 
the political influence of the Secretary of State in his 
own district." x 

Marshall himself was extremely depressed. "Ill 
news from Virginia," he writes Otis. "To succeed 
me has been elected by an immense majority one of 
the most decided democrats 2 in the union." Upon 
the political horizon Marshall beheld only storm and 
blackness: "In Jersey, too, I am afraid things are 
going badly. In Maryland the full force of parties 
will be tried but the issue I should feel confident 
would be right if there did not appear to be a cur- 
rent setting against us of which the force is in- 
calculable. There is a tide in the affairs of nations, 
of parties, and of individuals. I fear that of real 
Americanism is on the ebb." 3 Never, perhaps, in 
the history of political parties was calm, dispassion- 
ate judgment and steady courage needed more than 
they were now required to avert Federalist defeat. 
- Yet in all the States revenge, apprehension, and 

1 Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 404. 

1 During this period, the word "Democrat" was used by the Fed- 
eralists as a term of extreme condemnation, even more opprobrious 
than the word "Jacobin." For many years most Republicans hotly 
resented the appellation of "Democrat." 

« Marshall to Otis, Aug. 5, 1800; Otis MSS. 



516 JOHN MARSHALL 

despair blinded the eyes and deranged the councils 
of the supreme Federalist managers. 1 The voters in 
the party were confused and angered by the dissen- 
sions of those to whom they looked for guidance. 2 
The leaders agreed that Jefferson was the bearer of 
the flag of "anarchy and sedition," captain of the 
hordes of "lawlessness," and, above all, the remorse- 
less antagonist of Nationalism. What should be done 
" by the friends of order and true liberty to keep the 
[presidential] chair from being occupied by an enemy 
[Jefferson] of both?" was the question which the 
distressed Federalist politicians asked one another. 3 

In May, Hamilton thought that "to support 
Adams and Pinckney equally is the only thing that 
can save us from the fangs of Jefferson" 4 Yet, six 
days later, Hamilton wrote that "most of the most 
influential men of that [Federalist] party consider 
him [Adams] as a very unfit and incapable character. 
. . . My mind is made up. I will never more be 
responsible for him by any direct support, even 
though the consequence should be the election of Jef- 
ferson. ... If the cause is to be sacrificed to a weak 
and perverse man, I withdraw from the party." 5 

As the summer wore on, so acrimonious grew the 
feeling of Hamilton's supporters toward the Presi- 

1 For a vivid review of factional causes of the Federalists' decline 
see Sedgwick to King, Sept. 26, 1800; King, iii, 307-10; and Ames to 
King, Sept. 24, 1800; ib., 304. 

2 "The Public mind is puzzled and fretted. People don't know 
what to think of measures or men; they are mad because they are in 
the dark." (Goodrich to Wolcott, July 28, 1800; Gibbs, ii, 394.) 

3 Ames to Hamilton, Aug. 26, 1800; Works: Ames, i, 280. 

4 Hamilton to Sedgwick, May 4, 1800; Works: Lodge, x, 371. 

* Same to same, May 10, 1800; ib., 375. V 



CHIEF JUSTICE 517 

dent that they seriously considered whether his 
reelection would not be as great a misfortune as 
the success of the Republican Party. 1 Although 
the Federalist caucus had agreed to support Adams 
and Pinckney equally as the party's candidates for 
President, 2 yet the Hamiltonian faction decided to 
place Pinckney in the presidential chair. 3 

But, blindly as they groped, their failing vision was 
still clear enough to discern that the small local lead- 
ers in New England, which was the strong Federalist 
section of the country, were for Adams; 4 and that 
everywhere the party's rank and file, though irri- 

1 "In our untoward situation we should do as well with Jefferson 
for President and Mr. Pinckney Vice President as with anything we 
can now expect. Such an issue of the election, if fairly produced, is 
the only one that will keep the Federal Party together." (Cabot to 
Wolcott, Oct. 5, 1800; Lodge: Cabot, 295.) 

"If Mr. Adams should be reelected, I fear our constitution would 
be more injured by his unruly passions, antipathies, & jealousy, than 
by the whimsies of Jefferson." (Carroll to McHenry, Nov. 4, 1800; 
Steiner, 473.) 

"He [Adams] has palsied the sinews of the party, and" another four 
years of his administration "would give it its death wound." (Bay- 
ard to Hamilton, Aug. 18, 1800; Works: Hamilton, vi, 457.) 

2 McHenry to John McHenry, May 20, 1800; Gibbs, ii, 347. Ac- 
cording to the caucus custom, two candidates were named for Presi- 
dent, one of whom was understood really to stand for Vice-President, 
the Constitution at that time not providing for a separate vote for the 
latter officer. 

3 "You may rely upon my co-operation in every reasonable measure 
for effecting the election of General Pinckney." (Wolcott to Hamil- 
ton, July 7, 1800; Works: Hamilton, vi, 447-48.) 

"The affairs of this government will not only be ruined but . . . the 
disgrace will attach to the federal party if they permit the re-election 
of Mr. Adams." (lb.) "In Massachusetts almost all the leaders of the 
first class are dissatisfied with Mr. Adams and enter heartily into the 
policy of supporting General Pinckney." (Hamilton to Bayard, Aug. 
6, ib., 452 (also in Works: Lodge, x, 384); and see Jefferson to Butler, 
Aug. 11, 1800; Works: Ford, ix, 138.) 

4 Hamilton to Carroll, July 1, 1800; Works: Lodge, x, 378; and see 
Hamilton to Bayard, Aug. 6, 1800; ib., 384. 



518 JOHN MARSHALL 

tated and perplexed, were standing by the President. 
His real statesmanship had made an impression on 
the masses of his party : Dayton declared that Adams 
was "the most popular man in the United States." * 
Knox assured the President that "the great body 
of the federal sentiment confide implicitly in your 
knowledge and virtue. . . . They will . . . cling to 
you in preference to all others." 2 

Some urged Adams to overthrow the Hamiltonian 
cabal which opposed him. "Cunning half Jacobins 
assure the President that he can combine the virtu- 
ous and moderate men of both parties, and that all 
our difficulties are owing to an oligarchy which it is 
in his power to crush, and thus acquire the general 
support of the nation," 3 testifies Wolcott. 

The President heeded this mad counsel. Hamilton 
and his crew were not the party, said Adams; they 
were only a faction and a "British faction" at that. 4 

1 Sedgwick to Hamilton, May 7, 1800, quoting "our friend Dray- 
ton] who is not perfectly right" (Works: Hamilton, vi, 437; and see 
Cabot to Hamilton, Aug. 10, 1800; ib., 454); also Cabot to Wolcott, 
July 20, 1800; Lodge: Cabot, 282.) 

2 Knox to Adams, March 5, 1799; Works: Adams, viii, 626-27. 
Knox had held higher rank than Hamilton in the Revolutionary War 
and Adams had tried to place him above Hamilton in the provisional 
army in 1798. But upon the demand of Washington Knox was given 
an inferior rank and indignantly declined to serve. (Hildreth, v, 242- 
44. And see Washington to Knox, July 16, 1798; Writings: Ford, xiv, 
43-46.) Thereafter he became the enemy of, Hamilton and the ardent 
supporter of Adams. 

3 Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 315. 

4 Hamilton to Adams, Aug. 1, 1800; Works: Lodge, x, 382, and see 
390; Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396; Wolcott to Ames, 
Dec. 29, 1799; ib., 315. 

The public discussion of Adams's charge of a "British faction" 
against his party enemies began with the publication of a foolish letter 
he had written to Coxe, in May of 1792, insinuating that Pinckney'a 
appointment to the British Court had been secured by "much British 



CHIEF JUSTICE 519 

He would "rip it up." l The justly angered President, 
it appears, thought of founding a new party, an 
American Party, "a constitutionalist party." 2 It 
was said that the astute Jefferson so played upon 
him that Adams came to think the engaging but 
crafty Virginian aspired only to be and to be known 
as the first lieutenant of the Massachusetts states- 
man. 3 Adams concluded that he could make up any 
Federalist loss at the polls by courting the Republi- 
cans, whose "friendship," wrote Ames, "he seeks for 
himself." 4 

But the Republicans had almost recovered from 
the effect of the X. Y. Z. disclosures. "The rabies 
canina of Jacobinism has gradually spread . . . from 
the cities, where it was confined to docks and mob, 
to the country," 5 was the tidings of woe that Ames 
sent to Gore. The Hamiltonian leaders despaired 
of the continuance of the Government and saw "a 

influence." (Adams to Coxe, May, 1792; Gibbs, ii, 424.) The Presi- 
dent gave vitality to the gossip by talking of the Hamiltonian Feder- 
alists as a " British faction." He should have charged it publicly and 
formally or else kept perfectly silent. He did neither, and thus 
only enraged his foe within the party without getting the advantage 
of an open and aggressive attack. (See Steiner, footnote 3, to 468.) 

1 Phelps to Wolcott, July 15, 1800; relating Noah Webster's en- 
dorsement of Adams's opinions; Gibbs, ii, 380. 

2 Ames to Wolcott, Aug. 3, 1800; Gibbs, ii, 396. 

3 In the summer of 1800, Jefferson dined with the President. Adams 
was utterly unreserved to the Republican leader. After dinner, Gen- 
eral Henry Lee, also a guest, remonstrated with the President, who 
responded that "he believed Mr. Jefferson never had the ambition, 
or desire to aspire to any higher distinction than to be his [Adams's] 
first Lieutenant." (Lee to Pickering, 1802; Pickering MSS., Mass. 
Hist. Soc; also partly quoted in Gibbs, ii, 366; and see Ames to Wol- 
cott, June 12, 1800; Gibbs, ii, 368; and to King, Sept. 24, 1800; King, 
iii, 304.) 

4 Ames to Pickering, Nov. 5, 1799; Works: Ames, i, 261. 
6 Ames to Gore, Nov. 10, 1799; ib., 265. 



520 JOHN MARSHALL 

convulsion of revolution" as the result of "exces- 
sive democracy." 1 The union of all Federalist 
votes was "the only measure by which the govern- 
ment can be preserved." 2 But Federalist union! 
As well ask shattered glass to remould itself! 

The harmonious and disciplined Republicans were 
superbly led. Jefferson combined their battle-cries 
of the last two years into one mighty appeal — sim- 
ple, affirmative, popular. Peace, economy, "freedom 
of the press, freedom of religion, trial by jury, ... no 
standing armies," were the issues he announced, to- 
gether with the supreme issue of all, States' Rights. 
Upon this latter doctrine Jefferson planted all the 
Republican guns and directed their fire on "cen- 
tralization" which, said he, would "monarchise" 
our Government and make it "the most corrupt on 
earth," with increased "stock- jobbing, speculating, 
plundering, office-holding, and office-hunting." 3 

The Federalists could reply but feebly. The tax- 
gatherer's fingers were in every man's pockets; and 
Adams had pardoned the men who had resisted the 
collectors of tribute. The increased revenue was 
required for the army and navy, which, thought the 
people, were worse than needless 4 if there were to 
be no war and the President's second mission made 
hostilities improbable (they had forgotten that this 
very preparation had been the principal means of 

1 Ames to Gore, Nov. 10, 1799; Ames, i, 268. 

2 Cabot to Wolcott, June 14, 1800; Lodge: Cabot, 274. 

3 Jefferson to Granger, Aug. 13, 1800; Works: Ford, ix, 138-41; 
and see Jefferson to Gerry, January 26, 1799; ib., 17-19. 

* "The Jacobins and the half federalists are ripe for attacking the 
permanent force, as expensive, and unnecessary, and dangerous to 
liberty." (Ames to Pickering, Oct. 19, 1799; Works: Ames, i, 258.) 



CHIEF JUSTICE 521 

changing the haughty attitude of France) . The Alien 
and Sedition Laws had infuriated the "foreign" vot- 
ers 1 and alarmed thousands of American-born citi- 
zens. Even that potent bribe of free institutions, the 
expectation of office, could no longer be employed 
effectively with the party workers, who, testifies 
Ebenezer Huntington, were going over "to Jefferson 
in hopes to partake of the loaves and fishes, which 
are to be distributed by the new President." 2 

The Federalist leaders did nothing, therefore, but 
write letters to one another denouncing the "Jacob- 
ins" and prophesying "anarchy." "Behold France 
— what is theory here is fact there." 3 Even the 
tractable McHenry was disgusted with his stronger 
associates. "Their conduct," said he, "is tremulous, 
timid, feeble, deceptive & cowardly. They write 
private letters. To whom? To each other. But they 
do nothing. ... If the party recover its pristine 
energy & splendor, shall I ascribe it to such cunning, 
paltry, indecisive, backdoor conduct?" 4 

1 "In my lengthy journey through this State [Pennsylvania] I have 
seen many, very many Irishmen and with very few exceptions, they 
are United Irishmen, Free Masons, and the most God-provoking 
Democrats on this side of Hell," who, "with the joy and ferocity of 
the damned, are enjoying the mortification of the few remaining hon- 
est men and Federalists, and exalting their own hopes of preferment, 
and that of their friends, in proportion as they dismiss the fears of the 
gallows. . . . The Democrats are, without doubt, increasing." (Uriah 
Tracy to Wolcott, Aug. 7, 1800; Gibbs, ii, 399.) 

2 Huntington to Wolcott, Aug. 6, 1800; ib., 398. 

3 Ames to Wolcott, June 12, 1800; ib., 369. 

4 McHenry to Wolcott, July 22, 1800; Steiner, 462. "Your very 
wise political correspondents will tell you anything sooner than the 
truth. For not one of them will look for anything but profound reasons 
of state at the bottom of the odd superstructure of parties here. There 
is nothing of the kind at the bottom." (x\mes to King, Aug. 19, 1800; 
King, iii, 294.) 



522 JOHN MARSHALL 

What had become of the French mission? 1 Would 
to God it might fail! That outcome might yet save 
the Federalist fortunes. "If Mr. Marshall has any 
[news of the second French mission] beg him to let it 
out," implored Chauncey Goodrich. 2 But Marshall 
had none for public inspection. The envoys' dis- 
patches of May 17, 3 which had reached him nearly 
seven weeks afterward, were perplexing. Indeed, 
Marshall was "much inclined to think that . . . the 
French government may be inclined to protract it 
[the negotiation] in the expectation that events in 
America 4 may place them on higher ground than 
that which they now occupy." 5 To Hamilton, he 
cautiously wrote that the dispatches contained 
nothing "on which a positive opinion respecting the 
result of that negotiation can be formed." 6 

But he told the President that he feared "the im- 
pression which will probably be made by the New 
York Election," 7 and that European military de- 
velopments might defeat the mission's purpose. He 
advised Adams to consider what then should be 
done. Should "hostilities against France with the 
exception of their West India privateers ... be con- 
tinued if on their part a change of conduct shall be 

1 The Republicans were making much political capital out of the 
second mission. They had "saved the country from war," they said, 
by forcing Adams to send the envoys: "What a roaring and bellowing 
did this excite among all the hungry gang that panted for blood only 
to obtain pelf in every part of the country." (Aurora, March 4, 1800.) 

2 Goodrich to Wolcott, Aug. 26, 1800; Gibbs, ii, 412. 

3 Am. St. Prs., For. ReL, ii, 325. 

4 Republican success in the approaching election. 

5 Marshall to Adams, July 21, 1800; Adams MSS. 

6 Marshall to Hamilton, Aug. 23, 1800; Works: Hamilton, vi, 46ft 

7 A Republican victory. 



CHIEF JUSTICE 523 

manifest?" 1 Adams was so perturbed that he asked 
Marshall whether, in case the envoys returned 
without a treaty, Congress ought not to be asked to 
declare war, which already it had done in effect. For, 
said Adams, "the public mind cannot be held in 
a state of suspense; public opinion must be always a 
decided one whether right or not." 2 

Marshall counseled patience and moderation. In- 
deed, he finally informed Adams that he hoped for 
an adjustment: "I am greatly disposed to think," he 
advised the President, "that the present [French] 
government is much inclined to correct, at least in 
part, the follies of the past. Of these, none were 
perhaps more conspicuous or more injurious to the 
french nation, than their haughty and hostile con- 
duct to neutrals. Considerable retrograde steps in 
this respect have already been taken, and I expect 
the same course will be continued." If so, "there will 
exist no cause for w^ar, but to obtain compensation 
for past injuries"; and this, Marshall is persuaded, 
is not "a sufficient motive" for war. 3 

To others, however, Marshall was apprehensive: 
"It is probable that their [the French] late victories 
and the hope which many of our papers [Republican] 
are well calculated to inspire, that America is dis- 
posed once more to crouch at her [France's] feet may 
render ineffectual our endeavors to obtain peace." 4 

1 Marshall to Adams, Aug. 25, 1800; Adams MSS. 

2 Adams to Marshall, Sept. 4 and 5, 1800; Works: Adams, ix, 80-82. 

3 Marshall to Adams, Sept. 17, 1800; Adams MSS. The "retro- 
grade steps" to which Marshall refers were the modification of the 
French arrets and decrees concerning attacks on our commerce. , 

4 Marshall to Tinsley, Sept. 13, 1800; MS., Mass. Hist. Soc. 



524 JOHN MARSHALL 

But the second American mission to France had 
dealt with Bonaparte himself, who was now First 
Consul. The man on horseback had arrived, as 
Marshall had foreseen; a statesman as well as a sol- 
dier was now the supreme power in France. Also, as 
we have seen, the American Government had pro- 
vided for an army and was building a navy which, 
indeed, was even then attacking and defeating 
French ships. "America in arms was treated with 
some respect," as Marshall expresses it. 1 At any 
rate, the American envoys did not have to overcome 
the obstacles that lay in the way two years earlier 
and the negotiations began without difficulty and 
proceeded without friction. 

Finally a treaty was made and copies sent to 
Marshall, October 4, 1800. 2 The Republicans were 
rejoiced; the Federalist politicians chagrined. 3 Ham- 
ilton felt that in "the general politics of the world" 
it "is a make-weight in the wrong scale," but he 
favored its ratification because "the contrary . . . 
would . . . utterly ruin the federal party," and 
"moreover it is better to close the thing where it is 
than to leave it to a Jacobin to do much worse." 4 

Marshall also advised ratification, although he 
was "far, very far, from approving" 5 the treaty. 

1 Marshall, ii, 438. 

2 Am. St. Prs., For. ReL, ii, 342 et seq. 

3 Gunn to Hamilton, Dec. 18, 1800; Works: Hamilton, vi, 492; and 
Rutledge to Hamilton, Jan. 10, 1801; ib., 511; Ames to Gore, Nov. 10, 
1799; Works: Ames, i, 265. 

4 Hamilton to Sedgwick, Dec. 22, 1800; Works: Lodge, x, 397; also, 
to Morris, Dec. 24, 1800; ib., 398. 

6 Marshall to Hamilton, Jan. 1, 1801; Works: Hamilton, vi, 502- 
03; and see Brown : Ellsworth, 314-15. The principal American demand 
was compensation for the immense spoliation of American commerce 



CHIEF JUSTICE 525 

The Federalists in the Senate, however, were re- 
solved not to ratify it; they were willing to approve 
only with impossible amendments. They could not 
learn the President's opinion of this course; as to 
that, even Marshall was in the dark. "The Secre- 
tary of State knows as little of the intentions of the 
President as any other person connected with the 
government." * Finally the Senate rejected the con- 
vention; but it was so "extremely popular," said 
the Republicans, that the Federalist Senators were 
"frightened" to "recant." 2 They reversed their 
action and approved the compact. The strongest 
influence to change their attitude, however, was 
not the popularity of the treaty, but the pressure of 
the mercantile interests which wanted the business- 
destroying conflict settled. 3 

The Hamiltonian group daily became more wrath- 
ful with the President. In addition to what they 
considered his mistakes of policy and party blunders, 
Adams's charge that they were a "British faction" 
angered them more and more as the circulation of 
it spread and the public credited it. Even "General 

by the French. The treaty not only failed to grant this, but provided 
that we should restore the French ships captured by American vessels 
during our two years' maritime war with France, which, though 
formally undeclared, was vigorous and successful. "One part of the 
treaty abandons all our rights, and the other part makes us the dupes 
of France in the game she means to play against the maritime power 
of England. . . . We lose our honor, by restoring the ships we have 
taken, and by so doing, perhaps, make an implicit acknowledgment of 
the injustice of our hostile operations." (Rutledge to Hamilton, 
Jan. 10, 1801; Works: Hamilton, vi, 511.) 

1 Bayard to Andrew Bayard, Jan. 26, 1801 ; Bayard Papers: Don- 
nan, 121. 

2 Gallatin to his wife, Feb. 5, 1801; Adams: Gallatin, 259. 
9 lb., 254. 



526 JOHN MARSHALL 

M[arshallJ said that the hardest thing for the Fed- 
eralists to bear was the charge of British influence." l 
That was just what the "Jacobins" had been saying 
all along. 2 " If this cannot be counteracted, our char- 
acters are the sacrifice," wrote Hamilton in anger 
and despair. 3 Adams's adherents were quite as 
vengeful against his party enemies. The rank and 
file of the Federalists were more and more disgusted 
with the quarrels of the party leaders. "I cannot 
describe . . . how broken and scattered your federal 
friends are!" lamented Troup. "We have no rally- 
ing-point; and no mortal can divine where and when 
we shall again collect our strength. . . , Shadows, 
clouds, and darkness rest on our future prospects." 4 
The "Aurora" chronicles that "the disorganized 
state of the anti-Republican [Federalist] party ... is 
scarcely describable." 5 

Marshall, alone, was trusted by all; a faith which 
deepened, as we shall see, during the perplexing 
months that follow. He strove for Federalist union, 
but without avail. Even the most savage of the 
President's party enemies felt that "there is not a 
man in the U. S. of better intentions [than Marshall] 
and he has the confidence of all good men — no man 
regrets more than he does the disunion which has 

1 Ames to Gore, Dec. 29, 1800; reviewing political events of the 
year; Works: Ames, i, 286-87. 

2 Hamilton to Wolcott, Aug. 3, 1800; Works: Lodge, x, 383; and 
Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 400. 

3 Hamilton to Wolcott, Sept. 26, 1800; Works: Lodge, x, 389 (also 
in Gibbs, ii, 422); and see same to same, Aug. 3, 1800; Works: Lodge, 
x, 383. 

* Troup to King, Oct. 1, 1800; King, iii, 315. 
6 Aurora, May 20, 1800. 



CHIEF JUSTICE 527 

taken place and no one would do more to heal the 
wounds inflicted by it. In a letter ... he says 
* by union we can securely maintain our ground — 
without it we must sink & with us all sound correct 
American principle.' His efforts will . . . prove 
ineffectual." * 

It seems certain, then, that Hamilton did not con- 
sult the one strong man in his party w T ho kept his 
head in this hour of anger-induced madness. Yet, if 
ever any man needed the advice of a cool, far-seeing 
mind, lighted by a sincere and friendly heart, Ham- 
ilton required it then. And Marshall could and 
would have given it. But the New York Federalist 
chieftain conferred only with those who were as 
blinded by hate as he w r as himself. At last, in the 
midst of an absurd and pathetic confusion of coun- 
sels, 2 Hamilton decided to attack the President, and, 
in October, WTote his fateful and fatal tirade against 
Adams. 3 It w T as an extravaganza of party folly. It 
denounced Adams's "extreme egotism," "terrible 
jealousy," "eccentric tendencies," "violent rage"; 

1 Sedgwick to King, Sept. 26, 1800; King, iii, 309. 

2 Ames to Hamilton, Aug. 26, 1800; Works: Hamilton, vi, 463; also 
Cabot to Hamilton, Aug. 21, 1800; ib., 458; and Aug. 23, 1800; ib., 
460 (also in Lodge: Cabot, 284-88); and to Wolcott, Aug. 23, 1800; 
Lodge: Cabot, 288-89. 

The local politicians were loyal to the President; Ames bitterly 
complains of "the small talk among the small politicians, about dis- 
respect to the President, &c, &c." (Ames to Pickering, Nov. 23, 1799; 
Works: Ames, i, 272.) 

3 Hamilton to Adams, Aug. 1, 1800; Works: Lodge, x, 382; and 
same to same, Oct. 1, 1800; ib., 390. Wolcott supplied most of the 
material and revised Hamilton's manuscript. (Wolcott to Hamilton, 
Oct. 1, 2, 1800; Works: Hamilton, vi, 470-71.) For entire attack see 
Hamilton: " Public Conduct and Character of John Adams "; Works: 
vii, 687-726 (also in Works: Lodge, vii, 309-65.) 



528 JOHN MARSHALL 

and questioned "the solidity of his understanding." 
Hamilton's screed went back to the Revolution to 
discover faults in the President. Every act of his 
Administration was arraigned as a foolish or wicked 
mistake. 

This stupid pamphlet was not to be made public, 
but to be circulated privately among the Federalist 
leaders in the various States. The watchful Burr 
secured a copy * and published broadcast its bitter- 
est passages. The Republican politicians shook with 
laughter; the Republican masses roared with glee. 2 
The rank and file of the Federalists were dazed, 
stunned, angered; the party leaders were in despair. 
Thus exposed, Hamilton made public his whole 
pamphlet. Although its purpose was to further the 
plan to secure for Pinckney more votes than would 
be given Adams, it ended with the apparent advice 
to support both. Absurd conclusion! There might 
be intellects profound enough to understand why it 
was necessary to show that Adams was not fit to be 
President and yet that he should be voted for; but 
the mind of the average citizen could not fathom 
such ratiocination. Hamilton's influence was irrep- 
arably impaired. 3 The "Washington Federalist" 

1 Partem: Burr, 256-57; Davis: Burr, ii, 65 et seq. 

2 "This pamphlet has done more mischief to the parties concerned 
than all the labors of the Aurora! " (Duane to Collot ; Parton : Burr, 258.) 

3 "Our friends . . . lamented the publication. . . . Not a man . . . but 
condemns it. . . . Our enemies are universally in triumph. . . . His 
[Hamilton's] usefulness hereafter will be greatly lessened." (Troup to 
King, Nov. 9, 1800; King, iii, 331.) "All . . . blame . . . Mr. Hamil- 
ton." (Carroll to McHenry, Nov. 4, 1800; Steiner, 476.) 

Some Federalist politicians, however, observed Hamilton's wishes. 
For example: "You must at all events secure to the Genr. [Pinckney] a 
majority in Cong., it may there be done with safety, his success depends 



CHIEF JUSTICE 529 

denounced his attack as "the production of a disap- 
pointed man" and declared that Adams was "much 
his superior as a statesman." ! 

The campaign was a havoc of virulence. The Fed- 
eralists' hatred for one another increased their fury 
toward the compact Republicans, who assailed their 
quarreling foes with a savage and unrestrained fe- 
rocity. The newspapers, whose excesses had whipped 
even the placid Franklin into a rage a few years 
before, now became geysers spouting slander, vitu- 
peration, and unsavory 2 insinuations. "The venal, 

on the accomplishment of this measure. You know a friend of ours 
who can arrange this necessary business with the utmost perfect 
suavity." (Dickinson to McHenry, Oct. 7, 1800; Steiner, 471.) 

Again Dickinson writes of "the absolute necessity of obtaining a 
majority (if it should only be by a single vote) in Cong, to favor the 
man who interests us most" and hopes "Hamilton's publication . . . 
will produce the desired effect." (Oct. 31, 1800; ib., 472.) 

1 Washington Federalist, Nov. 29, 1800. 

2 Fop instance see the Aurora's editorial on women in the army, 
January 14, 1800; and see titles of imaginary books editorially sug- 
gested for use by the various Federalist leaders, especially Hamilton, 
Harper, and Gouverneur Morris, in ib., May 10, 1800. On August 21 
it described some Federalist leaders as "completely bankrupt of char- 
acter as well as fortune." 

Although it did not equal the extravagance of the Republican news- 
papers, the Federalist press was also violent. See, for instance, a 
satirical poem "by an Hibernian and an Alien" in the Alexandria 
Advertiser, reprinted hi the Washington Federalist of February 12, 
1801, of which the last verse runs: — 

" With J[effer]son, greatest of men, 
Our President next we will dash on. 

Republican marriages then, 
And drowning boats will be in fashion. 

Co-alitions, tri-color we'll form 
'T wixt white Men, Mulattos, and Negroes. 
The banks of the treasury we '11 storm — ■ 
Oh! how we'll squeeze the old Quakers, 
Philosophy is a fine thing! " 

The familiar campaign arguments were, of course, incessantly 
reiterated as: "The Government" cost only "five million dollars 



530 JOHN MARSHALL 

servile, base and stupid" x "newspapers are an over- 
match for any government," cried Ames. "They will 
first overawe and then usurp it." 2 And Noah Web- 
ster felt that "no government can be durable . . . 
under the licentiousness of the press that now dis- 
graces our country." 3 Discordant Federalists and 
harmonious Republicans resorted to shameful meth- 
ods. 4 "Never . . . was there such an Election in 
America." 6 

As autumn was painting the New England trees, 
Adams, still tarrying at his Massachusetts home, 
wrote Marshall to give his "sentiments as soon 
as possible in writing" as to what the President 
should say to Congress when it met December 3. 6 
Three days later, when his first request was not yet 
halfway to Washington, Adams, apparently forget- 
ful of his first letter, again urged Marshall to advise 
him as President in regard to his forthcoming fare- 
well address to the National Legislature. 7 

Marshall not only favored the President with his 
"sentiments" — he wrote every word of the speech 
which Adams delivered to Congress and sent it to 

. . . before the British treaty"; now it costs "fifteen millions. 
Therefore every man who paid one dollar taxes then pays three dollars 
now." (Aurora, Oct. 30, 1800.) 

1 Ames to Pickering, Nov. 5, 1799; Works: Ames, i, 264. 

2 Ames to Dwight, March 19, 1801; ib., 294. 

3 Webster to Wolcott, June 23, 1800; Gibbs, ii, 374. 

4 The Washington Federalist, Jan. 12, 1801, charged that, in Virginia, 
public money was used at the election and that a resolution to inquire 
into its expenditures was defeated in the Legislature. 

6 Charles Pinckney to Jefferson, Oct. 12, 1800; Amer. Hist. Rev., iv. 
117. For election arguments and methods see McMaster, ii, 499 et seq. 

6 Adams to Marshall, Sept. 27, 1800; Works: Adams, ix, 85; and 
see Graydon, footnote to 362. 

f Adams to Marshall, Sept. 30, 1800; Adams MSS. 



CHIEF JUSTICE 531 

the distressed Chief Magistrate in such haste that he 
did not even make a copy. 1 This presidential ad- 
dress, the first ever made to Congress in Washington, 
was delivered exactly as Marshall wrote it, with a 
change of only one word "much " for " such " and the 
omission of an adjective "great." 2 

The address is strong on the necessity for military 
and naval preparation. It would be "a dangerous 
imprudence to abandon those measures of self- 
protection ... to which . . . violence and the in- 
justice of others may again compel us to resort. . . . 
Seasonable and systematic arrangements . . . for a 
defensive war " are "a wise and true economy." The 
navy is described as particularly important, coast 
defenses are urged, and the manufacture of domes- 
tic arms is recommended in order to "supercede the 
necessity of future importations." The extension 
of the national Judiciary is pressed as of "primary 
importance ... to the public happiness." 3 

The election, at last, was over. The Republicans 
won, but only by a dangerously narrow margin. 
Indeed, outside of New York, the Federalists secured 
more electoral votes in 1800 than in the election of 

1 Marshall to Adams, without date; Adams MSS. 

2 Adams MSS. Marshall wrote two speeches for Adams. Both are 
in Marshall's handwriting. The President selected and delivered the 
one which appears in Adams's Works and in Richardson. The unde- 
livered speech was the better, although it was written before the 
French treaty arrived, and was not applicable to the state of our 
relations with France when Congress convened. Marshall also wrote 
for Adams the two brief separate addresses to the Senate and the 
House. (76.) 

3 The original manuscripts of these speeches, in Marshall's hand- 
writing, are in the Adams MSS. They are notable only as an evidence 
of Adams's confidence in Marshall at this, the most irritating period of 
his life. 



532 JOHN MARSHALL 

Adams four years earlier. 1 The great constructive 
work of the Federalist Party still so impressed con- 
servative people; the mercantile and financial inter- 
ests were still so well banded together; the Federalist 
revival of 1798, brought about by Marshall's dis- 
patches, was, as yet, so strong; the genuine worth of 
Adams's statesmanship 2 was so generally recog- 
nized in spite of his unhappy manner, that it would 
seem as though the Federalists might have succeeded 
but for the quarrels of their leaders and Burr's skill- 
ful conduct of the Republican campaign in New 
York. 

Jefferson and Burr each had seventy-three votes 

1 Beard: Econ. 0. J. D., chap. xiii. 

2 When it was certain that Adams had been defeated, "Solon," in 
the Washington Federalist of Jan. 9, 1801, thus eulogized him: — ■ 

"The die is cast! . . . Our beloved Adams will now close his bright 
career. . . . Immortal sage! May thy counsels continue to be our 
saving Angel! Retire and receive . . . the . . . blessings of all good 
men. . . . 

"Sons of faction [party]! demagogues and high priests of anarchy, 
now have you cause to triumph. Despots and tyrants! now may you 
safely pronounce 'ingratitude is the common vice of all republics. 
Envy and neglect are the only reward of superior merit. Calumny, 
persecution and banishment are the laurels of the hoary patriot.' . . . 

". . . We have to contend ... for national existence. Magistrates 
and rulers, be firm. . . . Our constitution is our last fortress. Let us 
entrench it against every innovation. When this falls, our country is 
lost forever." 

This editorial, as well as all political matter appearing in the Wash- 
ington Federalist during 1800-01, is important because of Marshall's 
reputed influence over that paper. (See infra, 541.) 

At news of Jefferson's success the leading Federalist journal de- 
clared that some Republicans in Philadelphia " huzzaed until they 
were seized with lockjaw . . . and three hundred are now drunk 
beyond hope of recovery. Gin and whiskey are said to have risen 
in price 50 per cent since nine o'clock this morning. The bells have 
been ringing, guns firing, dogs barking, cats meuling, children cry- 
ing, and jacobins getting drunk, ever since the news of Mr. Jeffer- 
son's election arrived in this city." {Gazette of the United States, 
£eb. 19, 1801.) 



CHIEF JUSTICE 533 

for President. Under the Constitution, as it stood 
at that time, the final choice for President was thus 
thrown into the House of Representatives. l By united 
and persistent effort, it was possible for the Federal- 
ists to elect Burr, or at least prevent any choice and, 
by law, give the Presidency to one of their own num- 
ber until the next election. This, Jefferson advises 
Burr, "they are strong enough to do." 2 The Federal- 
ists saw their chance; the Republicans realized their 
danger. 3 Jefferson writes of the "great dismay and 
gloom on the republican gentlemen here and equal 
exultation on the federalists who openly declare they 
will prevent an election." 4 This "opens upon us an 
abyss, at which every sincere patriot must shudder." 5 
Although Hamilton hated Burr venomously, he 
advised the Federalist managers in Washington "to 
throw out a lure for him, in order to tempt him to 
start for the plate, and then lay the foundation of 

1 At that time, the presidential electors did not vote for a Vice- 
President, but only for President. The person receiving the largest 
number of electoral votes became President and the one for whom 
the second largest number of votes were cast became Vice-President. 
When Jefferson and Burr each had seventy-three votes for President, 
the election was thrown into the House of Representatives. 

Thus, although, in casting their ballots for electors, the people really 
voted for Jefferson for President and for Burr for Vice-President, the 
equal number of votes received by each created a situation where it 
was possible to defeat the will of the people. Indeed, as appears in the 
text, that result was almost accomplished. It was this constitutional 
defect that led to the Twelfth Amendment which places the election 
of President and Vice-President on its present basis. (See "The Fifth 
Wheel in our Government" ; Beveridge: Century Magazine, December, 
1909.) 

2 Jefferson to Burr, Dec. 15, 1800; Works: Ford, ix, 155. 

8 "Jefferson & Burr have each 73 votes and . . . the Democrats are 
in a sweat." (Uriah Tracy to McHenry, Dec. 30, 1800; Steiner, 483.) 
4 Jefferson to Madison, Dec. 19, 1800; Works: Ford, ix, 158. 
* Jefferson to Breckenridge, Dec. 18, 1800; ib., 157. 



534 JOHN MARSHALL 

dissension between" him and Jefferson. 1 The Fed- 
eralists, however, already were turning to Burr, not 
according to Hamilton's unworthy suggestion, but 
in deadly earnest. At news of this, the fast-weaken- 
ing New York Federalist chieftain became frantic. 
He showered letters upon the party leaders in Con- 
gress, and upon all who might have influence, ap- 
pealing, arguing, persuading, threatening. 2 

But the Federalists in Congress were not to be 
influenced, even by the once omnipotent Hamilton. 
"The Federalists, almost with one Mind, from every 
Quarter of the Union, say elect Burr" because "they 
must be disgraced in the Estimation of the People if 
they vote for Jefferson having told Them that He 
was a Man without Religion, the Writer of the Letter 
to Mazzei, a Coward, &c, &c." 3 Hamilton's fierce 
warnings against Burr and his black prophecies of 
"the Cataline of America" 4 did not frighten them. 
They knew little of Burr, personally, and the coun- 

1 Hamilton to Wolcott, Dec. 16, 1800; Works: Lodge, x, 392. 

2 See these letters in ib., 392 et seq.\ and to Bayard, Jan. 16, 1801; 
ib., 412 (also in Works: Hamilton, vi, 419, but misplaced and mis- 
dated). 

3 Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90; and see 
Carroll to Hamilton, April 18, 1800; Works: Hamilton, vi, 434-35. 

The Washington Federalist, even when the balloting was in progress, 
thus stimulated the members of its party in the House: "Unworthy 
will he be and consecrate his name to infamy, who . . . has hitherto 
opposed . . . Mr. Jefferson . . . and shall now meanly and inconsist- 
ently lend his aid to promote it [Jefferson's election]. , . . Will they 
confer on Mr. Jefferson the Federal suffrage in reward for the cal- 
umnies he has indiscriminately cast upon the Federal character; or 
will they remunerate him ... for the very honorable epithets of 
pander, to the whore of England, * timid men, office hunters, monocrats, 
speculators and plunderers'' which he has missed no opportunity to 
bestow upon them." {Washington Federalist, Feb. 12, 1801.) 

4 Hamilton to Wolcott, Dec. 17, 1800; Works: Lodge, x, 395. 



CHIEF JUSTICE 535 

try knew less. What was popularly known of this 
extraordinary man was not unattractive to the 
Federalists. 

Burr was the son of the President of Princeton and 
the grandson of the celebrated Jonathan Edwards, 
the greatest theologian America had produced. He 
had been an intrepid and efficient officer in the Revo- 
lutionary War, and an able and brilliant Senator of 
the United States. He was an excellent lawyer and 
a well-educated, polished man of the world. He was 
a politician of energy, resourcefulness, and decision. 
And he was a practical man of affairs. If he were 
elected by Federalist votes, the fury with which Jef- 
ferson and his friends were certain to assail Burr l 
would drive that practical politician openly into 
their camp; and, as President, he would bring with 
him a considerable Republican following. Thus the 
Federalists would be united and strengthened and 
the Republicans divided and weakened. 2 

This was the reasoning which drew and bound the 
Federalists together in their last historic folly; and 
they felt that they might succeed. "It is . . . cer- 
tainly within the compass of possibility that Burr 

1 Jefferson rightly attributed to Burr Republican success in the 
election. " He has certainly greatly merited of his country, & the Re- 
publicans in particular, to whose efforts his have given a chance of 
success." (Jefferson to Butler, Aug. 11, 1800; Works: Ford, ix, 
138.) 

2 Sedgwick to Hamilton, Jan. 10, 1800; Works: Hamilton, vi, 511- 
14; Cabot to Hamilton, Aug. 10, 1800; ib., 453 (also in Lodge: Cabot, 
284); Hindman to McHenry, Jan. 17, 1801; Steiner, 489-90; Morris 
to Hamilton, Jan. 5, 1801; Morris, ii, 398; and same to same, Jan. 26, 
1801; ib., 402 (also in Works: Hamilton, vi, 503); Carroll to McHenry, 
Nov. 4, 1800; Steiner, 473-76; Rutledge to Hamilton, Jan. 10, 1801; 
Works: Hamilton, vi, 510. 



536 JOHN MARSHALL 

may ultimately obtain nine States," writes Bayard. 1 
In addition to the solid Federalist strength in the 
House, there were at least three Republican mem- 
bers, two corrupt and the other light-minded, who 
might by "management" be secured for Burr. 2 The 
Federalist managers felt that "the high Destinies 
... of this United & enlightened people are up"; 3 
and resolved upon the hazard. Thus the election of 
Burr, or, at least, a deadlock, faced the Republican 
chieftain. 

At this critical hour there was just one man who 
still had the confidence of all Federalists from Adams 
to Hamilton. John Marshall, Secretary of State, 
had enough influence to turn the scales of Federalist 
action. Hamilton approached Marshall indirectly 
at first. "You may communicate this letter to 
Marshall," he instructed Wolcott, in one of his most 
savage denunciations of Burr. 4 Wolcott obeyed 
and reported that Marshall "has yet expressed no 
opinion." 6 Thereupon Hamilton wrote Marshall 
personally. 

This letter is lost; but undoubtedly it was in the 
same vein as were those to Wolcott, Bayard, Sedg- 
wick, Morris, and other Federalists. But Hamilton 
could not persuade Marshall to throw his influence 
to Jefferson. The most Marshall would do was to 
agree to keep hands off. 

1 Bayard to Andrew Bayard, Jan. 26, 1801 ; Bayard Papers : Don- 
nan, 121. 

2 Bayard to Hamilton, March 8, 1801; Works: Hamilton, vi, 524. 

3 Tracy to McHenry, Jan. 15, 1801; Steiner, 488-99; and see Bay- 
ard to Andrew Bayard, Jan. 26, 1801 ; supra. 

4 Hamilton to Wolcott, Dec. 16, 1800; Works: Lodge, x, 392. 

6 Wolcott to Hamilton, Dec. 25, 1800; Works: Hamilton, vi, 498. 



CHIEF JUSTICE 537 

"To Mr. Jefferson," replies Marshall, "whose 
political character is better known than that of Mr. 
Burr, I have felt almost insuperable objections. His 
foreign prejudices seem to me totally to unfit him for 
the chief magistracy of a nation which cannot in- 
dulge those prejudices without sustaining deep and 
permanent injury. 

"In addition to this solid and immovable objec- 
tion, Mr. Jefferson appears to me to be a man, who 
will embody himself with the House of Representa- 
tives. 1 By weakening the office of President, he will 
increase his personal power. He will diminish his 
responsibility, sap the fundamental principles of the 
government, and become the leader of that party 
which is about to constitute the majority of the 
legislature. The morals of the author of the letter 
to Mazzei 2 cannot be pure. . . . 

1 See Chief Justice Ellsworth's statement of the conservative 
opinion of Jefferson. (Brown: Ellsworth, 324-25.) 

2 Jefferson to Mazzei, April 24, 1796; Works: Ford, viii, 237-41. 
The letter as published in America, although it had undergone three 
translations (from English into Italian, from Italian into French, 
and from French into English again), does not materially differ from 
Jefferson's original. 

It greatly angered the Federalist leaders. Jefferson calls the Fed- 
eralists "an Anglican, monarchical & aristocratical party." The 
Republicans had "the landed interests and men of talent"; the Fed- 
eralists had "the Executive, the Judiciary, " the office-holders and office- 
seekers — "all timid men who prefer the calm of despotism to the 
boisterous sea of liberty, British merchants & Americans trading on 
British capital, speculators & holders in the banks & public funds, a 
contrivance invented for the purposes of corruption," etc. 

Jefferson thus refers to Washington: "It would give you a fever 
were I to name to you the apostates who have gone over to these 
heresies, men who were Samsons in the field & Solomons in the council, 
but who have had their heads shorn by the whore England." It was 
this insult to Washington which Marshall resented most bitterly. 

Jefferson must have known that Mazzei would probably publish this 



538 JOHN MARSHALL 

"Your representation of Mr. Burr, with whom I 
am totally unacquainted, shows that from him still 
greater danger than even from Mr. Jefferson may be 
apprehended. Such a man as you describe is more 
to be feared, and may do more immediate, if not 
greater mischief. 

"Believing that you know him well, and are im- 
partial, my preference would certainly not be for 
him, but I can take no part in this business. I can- 
not bring myself to aid Mr. Jefferson. Perhaps 
respect for myself should, in my present situation, 
deter me from using any influence (if, indeed I pos- 
sessed any) in support of either gentleman. 

"Although no consideration could induce me to be 
the Secretary of State while there was a President 
whose political system I believed to be at variance 
with my own; yet this cannot be so well known to 
others, and it might be suspected that a desire to be 
well with the successful candidate had, in some de- 
gree, governed my conduct." 1 

Marshall had good personal reasons for wishing 
Burr to be elected, or at least that a deadlock should 
be produced. He did not dream that the Chief Jus- 
ticeship was to be offered to him; his law practice, 

letter. Writing at Paris, in 1788, of Mazzei's appointment by the 
French King as "intelligencer," Jefferson said: "The danger is that 
he will overact his part." (Jefferson to Madison, July 31, 1788; Works: 
Ford, v, 425.) 

The Republicans frankly defended the Mazzei letter; both its facts 
and "predictions" were correct, said the Aurora, which found scarcely 
"a line in it which does not contain something to admire for elegance 
of expression, striking fact, and profound and accurate penetration." 
(Aurora, May 26, 1800.) 

1 Marshall to Hamilton, January 1, 1801; Works: Hamilton, vi, 
501-03. 



CHIEF JUSTICE 539 

neglected for three years, had passed into other 
hands; the head of the Cabinet was then the most 
important 1 office in the Government, excepting only 
the Presidency itself; and rumor had it that Marshall 
would remain Secretary of State in case Burr was 
chosen as Chief Magistrate. If the tie between Jef- 
ferson and Burr were not broken, Marshall might 
even be chosen President. 2 

"I am rather inclined to think that Mr. Burr will 
be preferred. . . . General Marshall will then remain 
in the department of state; but if Mr. Jefferson be 
chosen, Mr. Marshall will retire," writes Pickering. 3 
But if Marshall cherished the ambition to continue 
as Secretary of State, as seems likely, he finally 
stifled it and stood aloof from the struggle. It was 
a decision which changed Marshall's whole life and 
affected the future of the Republic. Had Marshall 
openly worked for Burr, or even insisted upon a 

1 Following is a list of the annual salaries of different officers: — 

President $25,000 

Vice-President 5,000 

Chief Justice 4,000 

Associate Justices 3,500 

Attorney-General 1,500 

Secretary of the Treasury 3,500 

Secretary of State 3,500 

Secretary of War 3,000 

(Annals, 1st Cong., 1st Sess., Appendix, 2233-38.) 

2 At the very beginning of the movement in his favor, Burr refused 
to encourage it. "Every man who knows me ought to know that I 
disclaim all competition. Be assured that the Federalist party can 
entertain no wish for such a change. . . . My friends would dishonor 
my views and insult my feelings by a suspicion that I would submit 
to be instrumental in counteracting the wishes and expectations of the 
United States. And I now constitute you my proxy to declare these 
sentiments if the occasion shall require." (Burr to Smith, Dec. 16, 
1800; Washington Federalist, Dec. 31, 1800.) 

8 Pickering to King, Jan. 5, 1801; King, iii, 366. 



540 JOHN MARSHALL 

permanent deadlock, it is reasonably certain that 
the Federalists would have achieved one of their 
alternate purposes. 

Although Marshall refrained from assisting the 
Federalists in their plan to elect Burr, he did not 
oppose it. The "Washington Federalist," which 
was the Administration organ * in the Capital, 
presented in glowing terms the superior qualifica- 
tions of Burr over Jefferson for the Presidency, 
three weeks after Marshall's letter to Hamilton. 2 

1 See Aurora, Jan. 21, 1801. 

2 "Lucius," of - Fredericksburg, Virginia, in the Washington Feder- 
alist, Jan. 21, 25, and Feb. 6, 1801. 

The following extracts from the first of these articles reveal the 
temper and beliefs of the Federalists: "Burr never penned a declara- 
tion of independence; . . . but he . . . has engraved that declaration in 
capitals with the point of his sword: It is yet legible on the walls of 
Quebeck. He has fought for that independency, for which Mr. Jeffer- 
son only wrote. He has gallantly exposed his life in support of that 
declaration and for the protection of its penn-man. He has been liberal 
of his blood, while Mr. Jefferson has only hazarded his ink. . . . 

"He never shrank from the post of danger. He is equally fitted for 
service in the field and in the public counsels: He has been tried in 
both: in the one we have seen him an able and distinguished Senator; — 
in the other a brave and gallant officer. . . . 

"Mr. Jefferson is better qualified to give the description of a butter- 
fly's wing or to write an essay on the bones of the Mammouth; . . . 
but Mr. Burr . . . in . . . knowledge . . . necessary to form the great 
and enlightened statesman, is much superior to Mr. Jefferson. . . . 

"Mr. Burr is not . . . consecrated to the French; . . . nor has he 
unquenchable hatred to . . . Great Britain. Unlike the penn-man of 
the declaration he feels the full force of the expression, ' in war enemies, 
in peace friends' . . . Mr. Burr . . . will only consult national honor and 
national happiness, having no improper passions to gratify. 

"Mr. Burr is ... a friend of the Constitution ... a friend of the 
commercial interests . . . the firm and decided friend of the navy . . . 
the Eastern States have had a President and Vice President; So have 
the Southern. It is proper that the middle states should also be re- 
spected. . . . 

"Mr. Burr has never procured or encouraged those infamous Calum- 
nies against those who have rilled the Executive departments . . . 



CHIEF JUSTICE 541 

The Republicans said that Marshall wrote much 
that appeared in this newspaper. 1 If he was influ- 
ential with the editor, he did not exercise his power 
to exclude the paper's laudation of the New York 
Republican leader. 

It was reported that Marshall had declared that, 
in case of a deadlock, Congress "may appoint a 
Presidt. till another election is made." 2 The rumor 



which we long have witnessed: Nor have those polluted Sinks, the 
Aurora, the Argus, the Press, the Richmond Examiner, and the like, 
poured forth their impure and foetid streams at the influence of Mr. 
Burr, or to subserve his vanity or his ambition. 

"If Mr. Burr is elected, the Federalists have nothing to fear. . . . 
The vile calumniators ... of all who have . . . supported our govern- 
ment, and the foreign incendiaries, who, having no interest in Heaven, 
have called Hell to their assistance, . . . from Mr. Burr have nothing 
to hope. . . . 

"Mr. Burr can be raised to the Presidency without any insult to the 
feelings of the Federalists, the friends of Government; . . . with- 
out an insult to the Memory of our Washington; for it was not by 
Mr. Burr, nor was it by his friends, nor to serve him that the great, the 
good, the immortal Washington was charged with having, by his name, 
given a sanction to corruption, with being meanly jealous of the fame 
of even that contemptible wretch Tom Paine, with being an unprin- 
cipled Hypocrite and with being a foul murderer! a murderer under 
circumstances of such peculiar atrocity as to shock with horror the 
merciless savages, and to cause them indignantly to fly from his blood 
polluted banner!" 

1 " John Marshall ... is the reputed author of a great part of the 
[rubbish] in the Washington Federalist." (Scots Correspondent [Cal- 
lender] in Richmond Examiner, Feb. 24, 1801.) There is no proof of 
Callender's assertion; but some of the matter appearing in the Wash- 
ington Federalist is characteristic of Marshall's style and opinions. 
See, for instance, the editorial on the prosecution of Theodore Dwight, 
denouncing "party spirit" (Washington Federalist, March 1, 1801). 
The Aurora of March 26, 1801, denounced " John Marshall's Federal 
Gazette at Washington." 

2 Monroe to Jefferson, Jan. 18, 1801; Monroe's Writings: Hamilton, 
iii, 256. An article signed "Horatius" in the Washington Federalist of 
Jan. 6, 1801, stated this position with great ability. The argument is 
able and convincing; and it is so perfectly in Marshall's method of 



542 JOHN MARSHALL 

increased Republican alarm and fanned Republican 
anger. From Richmond came the first tidings of the 
spirit of popular resistance to "such a usurpation,'' * 
even though it might result in the election of Mar- 
shall himself to the Presidency. If they could not 
elect Burr, said Jefferson, the Federalists planned 
to make Marshall or Jay the Chief Executive by a 
law to be passed by the expiring Federalist Congress. 2 
Monroe's son-in-law, George Hay, under the nom 
de guerre of "Hortensius," attacked Marshall in 
an open letter in the "Richmond Examiner," which 
was copied far and wide in the Republican press. 
Whether Congress will act on Marshall's opinion, 
says Hay, "is a question which has already diffused 
throughout America anxiety and alarm; a question 
on the decision of which depends not only the peace 
of the nation, but the existence of the Union." Hay 
recounts the many indications of the Federalists' pur- 
pose and says: "I understand that you, Sir, have not 
only examined the Constitution, but have given an 
opinion in exact conformity with the wishes of your 
party." He challenges Marshall to "come forward . . . 
and defend it." If a majority of the House choose 
Burr the people will submit, says Hay, because 
such an election, though contrary to their wishes, 

reasoning and peculiar style of expression that his authorship would 
appear to be reasonably certain. 

"Horatius's" opinion concluded that the power of Congress "is 
completely adequate ... to provide by law for the vacancy that may 
happen by the removal of both President and Vice President on the 
3d of March next, and the non-election of a successor in the manner 
prescribed by the constitution." 

1 Monroe to Jefferson, Jan. 18, 1801 ; Monroe's Writings: Hamilton, 
iii, 256. 
^ 3 Jefferson to Madison, Dec. 26, 1800; Works: Ford, ix, 161-62. 



CHIEF JUSTICE 543 

would be constitutional. But if, disregarding the 
popular will and also violating the Constitution, 
Congress "shall elect a stranger to rule over us, 
peace and union are driven from the land. . . . The 
usurpation . . . will be instantly and firmly repelled. 
The government will be at an end." 1 

Although the " Washington Federalist " de- 
nounced as "a lie" 2 the opinion attributed to him, 
Marshall, personally, paid no attention to this bold 
and menacing challenge. But Jefferson did. After 
waiting a sufficient time to make sure that this open 
threat of armed revolt expressed the feeling of the 
country, he asserted that "we thought best to declare 
openly and firmly, one & all, that the day such an 
act passed, the Middle States would arm, & that no 
such usurpation, even for a single day, should be 

1 " Hortensius " to John Marshall, Secretary of State, in the Rich- 
mond Examiner; reprinted in the Aurora, Feb. 9, 1801. George 
Hay, the writer of this letter, was a lawyer in Richmond. Jefferson 
appointed him United States Attorney for the District of Virginia, 
and, as such, he conducted the prosecution of Aaron Burr for treason 
before John Marshall, who, as Chief Justice of the United States, 
presided at the trial. (See vol. in of this work.) 

Marshall was again attacked in two open letters, signed "Lucius," 
in the Richmond Examiner, Feb. 10, 13, 1801. His reported opinion, 
said "Lucius," alarmed "the active friends of freedom"; Marshall was 
"the Idol of his party" and knew the influence of his views: unless he 
publicly disclaimed the one now attributed to him, "Lucius" pro- 
posed to "unveil" Marshall's "motives" and "expose" him "un- 
covered to the sight of the people " — his " depravity shall excite 
their odium," etc. " Lucius's " attacks ended with Jefferson's election. 

2 The paper criticized " the intemperate counsel of a certain would 
be attorney-general of the United States (George Hay, Esq. of the an- 
tient dominion) . . . under the signature of Hortensius, and addressed 
to General Marshall, in consequence of a lie fabricated against him 
relative to an opinion said to have been given by him upon the late 
presidential election, which the honorable attorney knew to be a lie 
as well as we did, but was fearful of being forgot, and despaired of 
getting a better opportunity to shew himself!!!" (Washington Fed- 
eralist, Feb. 12, 1801.) 



544 JOHN MARSHALL 

submitted to." x The Republicans determined not 
only to resist the "usurpation ... by arms," but 
to set aside the Constitution entirely and call "a con- 
vention to reorganize and amend the government." 2 

The drums of civil war were beating. Between 
Washington and Richmond "a chain of expresses" 
was established, the messengers riding "day and 
night." 3 In Maryland and elsewhere, armed men, 
wrought up to the point of bloodshed, made ready 
to march on the rude Capital, sprawling among the 
Potomac hills and thickets. Threats were openly 
made that any man appointed President by act of 
Congress, pursuant to Marshall's reputed opinion, 
would be instantly assassinated. The Governor of 
Pennsylvania prepared to lead the militia into 
Washington by the 3d of March. 4 

To this militant attitude Jefferson ascribed the 
final decision of the Federalists to permit his elec- 
tion. But no evidence exists that they were intimi- 
dated in the least, or in any manner influenced, by 
the ravings of Jefferson's adherents. On the con- 
trary, the Federalists defied and denounced the Re- 
publicans and met their threats of armed interference 
with declarations that they, too, would resort to 
the sword. 5 

1 Jefferson to Monroe, Feb. 15, 1801; Works: Ford, ix, 178-79; and 
see Jefferson to McKean, March 9, 1801; ib., 206. 

2 Jefferson to Madison, Feb. 18, 1801; ib., 182. 

3 Monroe to Hoomes, Feb. 14, 1801; Monroe's Writings: Hamilton, 
iii, 259; and Monroe to Nicholas, Feb. 18, 1801; ib., 260. 

4 For these incidents and reports see Gallatin to his wife, May 8, 
1801; Adams: Gallatin, 249. 

5 Thus, for example, the Washington Federalist of Feb. 12, 1801, 
after the House had balloted "upwards of 30 times": — 

"But say the bold and impetuous partisans of Mr, Jefferson, and 



CHIEF JUSTICE 515 

The proof is overwhelming and decisive that 
nothing but Burr's refusal to help the Federalists in 
his own behalf, 1 his rejection of their proposals, 2 and 

that, too, in the Teeth of the Assembled Congress of America — 'Dare to 
designate any officer whatever, even temporarily, to administer the 
government in the event of a non-agreement on the part of the House 
of Representatives, and we will march and dethrone him as an usurper. 
Dare (in fact) to exercise the right of opinion, and place in the presi- 
dential chair any other than the philosopher of Monticello, and ten 
thousand republican words will instantly leap from their scabbards, in 
defence of the violated rights of the People!!! 

"Can our Countrymen be caught by so flimsy a pretext? 

"Can it possibly interest either their feelings or their judgment? 

"Are they, then, ripe for civil war, and ready to imbrue their hands 
in kindred blood? 

"If the tumultuous meetings of a set of factious foreigners in Penn- 
sylvania or a few fighting bacchanals of Virginia, mean the people, and 
are to dictate to the Congress of the United States whom to elect as 
President — if the constitutional rights of this body are so soon to 
become the prey of anarchy and faction — ... it would be prudent to 
prepare for the contest: the woeful experiment if tried at all could 
never be tried at a more favorable conjuncture! 

"With the militia of Massachusetts consisting of 70,000 (regulars 
let us call them) in arms — with those of New Hampshire and Con- 
necticut united almost to a man, with half the number at least of the 
citizens of eleven other States ranged under the federal banner in 
support of the Constitution, what could Pennsylvania aided by Vir- 
ginia — the militia of the latter untrained and farcically performing 
the manual exercise with corn-stalks instead of muskets — ... What, 
may it be asked, would be the issue of the struggle ?" 

1 "The means existed of electing Burr, but this required his co- 
operation. By deceiving one man (a great blockhead) and tempting 
two (not incorruptible) he might have secured a majority of the 
States." (Bayard to Hamilton, March 8, 1801; Works: Hamilton, vi, 
522-24.) 

"The Federalists were confident at first, they could debauch Col. 
B.[urr] . . . His conduct has been honorable and decisive, and greatly 
embarrasses them." (Jefferson to his daughter, Jan. 4, 1801; Works: 
Ford, ix, 166.) 

2 " I was enabled soon to discover that he [Burr] was determined not 
to shackle himself with federal principles. . . . When the experiment 
was fully made, and acknowledged upon all hands, . . . that Burr was 
resolved not to commit himself, ... I came out ... for Jefferson." 
(Bayard to Hamilton, March 8, 1801; Works: Hamilton, vi, 523.) 



546 JOHN MARSHALL 

his determination, if chosen, to go in as a Republican 
untainted by any promises; * and, on the other 
hand, the assurances which Jefferson gave Federal- 
ists as to offices and the principal Federalist policies 
— Neutrality, the Finances, and the Navy 2 — only 
all of these circumstances combined finally made 
Jefferson president. Indeed, so stubborn was the 
opposition that, in spite of his bargain with the 
Federalists and Burr's repulsion of their advances, 
nearly all of them, through the long and thrillingly 
dramatic days and nights of balloting, 3 with the 
menace of physical violence hanging over them, 
voted against Jefferson and for Burr to the very end. 

1 The Federalist managers were disgusted with Burr because he 
refused to aid them in their plot to elect him. "Burr has acted a mis- 
erable paultry part," writes Bayard. "The election was in his power, 
but he was determined to come in as a Democrat. . . . We have been 
counteracted in the whole business by letters he has written to this 
place." (Bayard to Bassett, Feb. 16, 1801; Bayard Papers: Donnan; 
126.) 

Burr had not "used the least influence" to be elected. (Bayard's 
Deposition; Davis: Burr, ii, 127.) 

"Had Burr done anything, for himself, he would, long ere this, have 
been President.'''' (Cooper to Morris, Feb. 13, 1801; Davis; Burr, ii, 
113.) 

2 Depositions of Bayard and Smith, in Gillespie vs. Smith; Randall, 
ii, 613-17; and Davis: Burr, ii, 135-37; also Baer to Bayard, April 19, 
1830; ib., 118; and see Bayard's account; Remarks in the Senate, Jan. 
31, 1835; also, Bayard to McLane, Feb. 17, 1801; Bayard Papers: 
Donnan, 126 et seq. 

In his "Anas " (Works: Ford, i, 392-93) Jefferson flatly denied his 
deal with the Federalists, and this, afterwards, provoked much con- 
troversy. It now is established that the bargain was made. See Pro- 
fessor McMaster's conclusion: "The price settled . . . the Repub- 
licans secured ten states." (McMaster, ii, 526.) 

3 For accounts by participants in this exciting and historic contest, 
see Gallatin's letters to his wife and to Nicholson from Feb. 5 to Feb. 
19, 1801; Adams: Gallatin, 257-63; Dana to Wolcott, Feb. 11, 1801; 
Gibbs, ii, 489-90; Bayard to several friends, Feb. 22, 1801; Bayard 
Papers, supra. 



CHIEF JUSTICE 547 

The terms concluded with Jefferson, enough 
Federalists cast blank ballots 1 to permit his elec- 
tion; and so the curtain dropped on this comedy of 
shame. 2 "Thus has ended the most wicked and 
absurd attempt ever tried by the Federalists," said 
the innocent Gallatin. 3 So it came about that the 
party of Washington, as a dominant and governing 
force in the development of the American Nation, 
went down forever in a welter of passion, tawdry 
politics, and disgraceful intrigue. All was lost, 
including honor. 

But no ! All was not lost. The Judiciary remained. 
The newly elected House and President were Re- 
publican and in two years the Senate also would be 
"Jacobin"; but no Republican was as yet a member 
of the National Judiciary. Let that branch of the 
Government be extended; let new judgeships be 
created, and let new judges be made while Federal- 
ists could be appointed and confirmed, so that, by 
means, at least, of the National Courts, States' Rights 
might be opposed and retarded, and Nationalism 
defended and advanced — thus ran the thoughts 
and the plans of the Federalist leaders. 

Adams, in the speech to Congress in December of 
the previous year, had urged the enactment of a law 
to this end as "indispensably necessary." 4 In the 

1 Jefferson to Madison, Feb. 18, 1801; Works: Ford, ix, 183. 

2 After Jefferson's election, for many days the Washington Federal- 
ist carried in italics at the head of its editorial columns a sentiment 
characteristic of Marshall: " May he discharge its duties in such a man- 
ner as to merit and receive the blessings of all good men and without red- 
ding the cheek of the American Patriot with blushes for his country!!! " 

3 Gallatin to his wife, Feb. 17, 1801; Adams: Gallatin, 262. 

4 Adams to Congress, Dec. 3, 1799; Annals, 6th Cong., 1st Sess., 



548 JOHN MARSHALL 

President's address to the expiring Federalist Con* 
gress on December 3, 1800, which Marshall wrote, 
the extension of the National Judiciary, as we have 
seen, was again insistently urged. 1 Upon that meas- 
ure, at least, Adams and all Federalists agreed. 
" Permit me," wrote General Gunn to Hamilton, "to 
offer for your consideration, the policy of the federal 
party extending the influence of our judiciary; if 
neglected by the federalists the ground will be occu- 
pied by the enemy, the very next session of Congress, 
and, sir, we shall see and many other scoun- 
drels placed on the seat of justice." 2 

Indeed, extension of the National Judiciary was 
now the most cherished purpose of Federalism. 3 A 
year earlier, after Adams's first recommendation of 
it, Wolcott narrates that "the steady men" in the 
Senate and House were bent upon it, because "there 
is no other way to combat the state opposition [to 
National action] but by an efficient and extended 
organization of judges." 4 

Two weeks after Congress convened, Roger Gris- 
wold of Connecticut reported the eventful bill to 

187-88; and Richardson, i, 289. Yet at this period the business of the 
courts was actually decreasing. (See Brown: Ellsworth, 198.) But 
the measure was demanded by the bar generally and insisted upon 
by the Justices of the Supreme Court. (See Gibbs, ii, 486.) 

1 Adams to Congress, Dec. 3, 1799; as written by Marshall; Adams 
MSS. 

2 Gunn to Hamilton, Dec. 13, 1800; Works: Hamilton, vi, 483. 

3 The Federalist attitude is perfectly expressed in the following 
toast drunk at a banquet to Wolcott, attended by "the heads of de- 
partments" and the Justices of the Supreme Court: "The Judiciary 
of the United States ! Independent of party, independent of power and 
independent of popularity ." (Gazette of the United States, Feb. 7, 
1801.) 

* Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 316. 



CHIEF JTSTICE 549 

carry out this Federalist plan. 1 It was carefully and 
ably drawn and greatly widened the practical ef- 
fectiveness of the National Courts. The Supreme 
Court was reduced, after the next vacancy, to five 
members — to prevent, said the Republicans, the 
appointment of one of their party to the Nation's 
highest tribunal. 2 Many new judgeships were cre- 
ated. The Justices of the Supreme Court, who had 
sat as circuit judges, were relieved of this itinerant 
labor and three circuit judges for each circuit were 
to assume these duties. At first, even the watchful 
and suspicious Jefferson thought that "the judici- 
ary system will not be pushed, as the appoint- 
ments, if made, by the present administration, 
could not fall on those who create them." 3 

1 Annals, 6th Cong., 1st Sess., Dec. 19, 837-38. 

2 Richmond Examiner, Feb. 6, 1801. 

3 Jefferson to Madison, Dec. 19, 1800; Works: Ford, ix, 159. The 
Republicans were chiefly alarmed because, in the extension of the 
National Judiciary, offices would be provided for Federalists. Even 
Jefferson then saw nothing but patronage in the Judiciary Act. 

The "evident" purpose of the bill, said the Aurora, Feb. 4, 1801, 
was to " increase the influence of the present Executive and provide 
a comfortable retreat for some of those good federalists who have found 
it convenient to resign from their offices or been dismissed from them 
by the people. " 

In comparison to this objection little attention was paid to the more 
solid ground that the National Judiciary would be used to "force the 
introduction of the common law of England as a part of the law of the 
United States"; or even to the objection that, if the Judiciary was 
extended, it would "strengthen the system of terror by the increase of 
prosecutions under the Sedition law"; or to the increase of the "enor- 
mous influence" given the National Courts by the Bankruptcy Law. 

The Aurora, March 18, 1801, sounded the alarm on these and other 
points in a clanging editorial, bidding "the people beware," for "the 
hell hounds of persecution may be let loose . . . and the people be 
roasted into implicit acquiescence with every measure of the ' powers 
that be.' " But at this time it was the creation of offices that the 
Federalists would fill to which the Republicans chiefly objected. 



550 JOHN MARSHALL 

But Jefferson underestimated the determination 
of the Federalists. Because they felt that the bill 
would "greatly extend the judiciary power and of 
course widen the basis of government," they were 
resolved, writes Rutledge, to "profit of our short- 
lived majority, and do as much good as we can 
before the end of this session " 1 by passing the 
Judiciary Bill. 

In a single week Jefferson changed from confi- 
dence to alarm. After all, he reflected, Adams could 
fill the new judgeships, and these were life appoint- 
ments. "I dread this above all the measures medi- 
tated, because appointments in the nature of free- 
hold render it difficult to undo what is done," 2 was 
Jefferson's second thought. 

The Republicans fought the measure, though not 
with the vigor or animosity justified by the political 
importance they afterwards attached to it. Among 
the many new districts created was an additional 
one in Virginia. The representatives from that State 
dissented; but, in the terms of that period, even their 
opposition was not strenuous. They said that, in 
Virginia, litigation was declining instead of increas- 
ing. "At the last term the docket was so completely 
cleared in . . . ten days . . . that the court . . . had 
actually decided on several [suits] returnable to the 
ensuing term." 3 

That, replied the Federalists, was because the 
courts were too far away from the citizens. As for 
the National revenues, they could be collected only 

1 Rutledge to Hamilton, Jan. 10, 1801; Works: Hamilton, vi, 511. 

2 Jefferson to Madison, Dec. 26, 1800; Works: Ford, ix, 161. 
8 Annals, 6th Cong., 1st Sess., 878. 



CHIEF JUSTICE 551 

through National tribunals; for this purpose, 1 two 
Federal Courts in Virginia, as provided by the bill, 
were essential. But, of course, sneered the Federal- 
ists, "Virginia would be well satisfied with one court 
in preference to two or with no court whatever in 
preference to one." 2 

But there was a defect in the bill, intimated the 
Virginia Republicans, that affected tenants and 
landowners of the Northern Neck. A clause of sec- 
tion thirteen gave the newly established National 
Court jurisdiction of all causes arising under the 
Constitution where original or exclusive jurisdiction 
was not conferred upon the Supreme Court or 
Admiralty Courts. 3 The National Court of the new 
Virginia District was to be held at Fredericksburg. 
Thus all suits for quitrents or other claims against 
those holding their lands under the Fairfax title 
could be brought in this near-by National Court, 
instead of in State Courts. This criticism was so 
attenuated and so plainly based on the assumption 
that the State Courts would not observe the law in 
such actions, that it was not pressed with ardor even 
by the impetuous and vindictive Giles. 

But Nicholas went so far as to move that the juris- 
diction of National Courts should be limited to causes 
exceeding five hundred dollars. This would cut out 
the great mass of claims which the present holders of 
the Fairfax title might lawfully have against tenants 
or owners. The Marshalls were the Fairfax assign- 

1 Annals, 6th Cong., 1st Sess., 879. 

2 lb. The person who made this absurd speech is not named in the 
official report. 

3 lb., 896. 



552 JOHN MARSHALL 

ees, as we have seen. No Republican, however s 
mentioned them in debate; but some one procured 
the insertion in the record of an insinuation which 
nobody made on the floor. In brackets, the "An- 
nals," after the brief note of Nicholas's objection, 
states: "[It is understood that the present as- 
signees of the claims of Lord Fairfax, are General 
Marshall, General Lee, and a third individual and 
that they maintain their claims under the British 
Treaty.]" 1 

For three weeks the debate in the House dragged 
along. Republican opposition, though united, was 
languid. 2 At last, without much Republican resist- 
ance, the bill passed the House on January 20, 1801, 
and reached the Senate the next day. 3 Two weeks 
later the Senate Republicans moved a substitute 
providing for fewer circuits, fewer judges, and a 
larger Supreme Court, the members of which were 
to act as circuit judges as formerly. 4 It was defeated 
by a vote of 17 to 13. 5 The next day the bill was 
passed by a vote of 16 to ll. 6 

When the debate began, the National Judiciary 
was without a head. Ellsworth, broken in health, 
had resigned. Adams turned to Jay, the first Chief 
Justice, and, without asking his consent, reappointed 
him. "I have nominated you to your old station," 7 

1 Annals, 6th Cong., 1st Sess., 897. This curious entry is, plainly, 
the work of some person who wished to injure Marshall and Lee. 
Nicholas's motion was lost, but only by the deciding vote of the 
Speaker. (lb.) The bill, as finally passed, limited the jurisdiction of 
the National Courts to causes exceeding four hundred dollars. (lb.) 

2 lb., 900, 901, 903, and 905. 

3 lb., 734. 4 lb., 740-41. 8 lb., 741. 6 lb., 742. 
7 Adams to Jay, Dec. 19, 1800; Works: Adams, ix, 91. 



CHIEF JUSTICE 553 

wrote the President. "This is as independent of the 
inconstancy of the people, as it is of the will of a 
President." But Jay declined. 1 Some of the Feder- 
alist leaders were disgruntled at Jay's appointment. 
"Either Judge Paterson [of New Jersey] or General 
Pinckney ought to have been appointed; but both 
these worthies were your friends," 2 Gunn reported 
to Hamilton. The Republicans were relieved by 
Jay's nomination — they "were afraid of something 
worse." 3 

Then, on January 20, 1801, with no herald an- 
nouncing the event, no trumpet sounding, suddenly, 
and without previous notification even to himself, 
John Marshall was nominated as Chief Justice of 
the United States a few weeks before the Federal- 
ists went out of power forever. His appointment 
was totally unexpected. It was generally thought 
that Judge Paterson was the logical successor to 
Ellsworth. 4 Marshall, indeed, had recommended his 
selection. 5 The letters of the Federalist leaders, who 
at this period were lynx-eyed for any office, do not 
so much as mention Marshall's name in connection 
with the position of Chief Justice. 

Doubtless the President's choice of Marshall was 
influenced by the fact that his "new minister, 

1 Jay to Adams, Jan. 2, 1801; Jay: Johnston, iv, 284. Jay refused 
the reappointment because he believed the Supreme Court to be fa- 
tally lacking in power. See chap, i, vol. in, of this work. 

2 Gunn to Hamilton, Dec. 18, 1800; Works: Hamilton, vi, 492. 

3 Jefferson to Madison, Dec. 19, 1800; Works: Ford, ix, 159. It is 
impossible to imagine what this "something worse" was. It surely 
was not Marshall, who was in nobody's mind for the Chief Justiceship 
when Jay was named. 

4 Pickering to King, Jan. 12, 1801; King, iii, 367. 
6 Story, in Dillon, iii, 359. 



554 JOHN MARSHALL 

Marshall, did all to " his " entire satisfaction." 1 Fed- 
eralist politicians afterward caviled at this state- 
ment of Adams. It was quite the other way around, 
they declared. "Every one who knew that great 
man [Marshall] knew that he possessed to an ex- 
traordinary degree the faculty of putting his own 
ideas into the minds of others, unconsciously to 
them. The secret of Mr. Adams's satisfaction [with 
Marshall] was, that he obeyed his Secretary of State 
without suspecting it." 2 

The President gave Marshall's qualifications as 
the reason of his elevation. Boudinot reported to 
Adams that the New Jersey bar hailed with "the 
greatest pleasure" a rumor that "the office of Chief 
Justice . . . may be filled by" Adams himself "after 
the month of March next." The President, who ad- 
mitted that he was flattered, answered: "I have al- 
ready, by the nomination of a gentleman in the full 
vigor of middle age, in the full habits of business, and 
whose reading of the science is fresh in his head, 3 to 
this office, put it wholly out of my power as it never 
was in my hopes or wishes." 4 

Marshall's appointment as Chief Justice was not 

1 Adams to William Cunningham, Nov. 7, 1808; Cunningham Let- 
ters, no. xiv, 44; also mentioned in Gibbs, ii, 349. 

2 Gibbs, ii, 349, 350. 

3 As we have seen, Marshall's "reading of the science," "fresh" or 
stale, was extremely limited. 

4 Adams to Boudinot, Jan. 26, 1801; Works: Adams, ix, 93-94 
Adams's description of Marshall's qualifications for the Chief Justice- 
ship is by way of contrast to his own. "The office of Chief Justice is 
too important for any man to hold of sixty-five years of age who has 
wholly neglected the study of the law for six and twenty years." (lb.) 
Boudinot's "rumor" presupposes an understanding between Jefferson 
and Adams. 



CHIEF JUSTICE 555 

greeted with applause from any quarter; there was 
even a hint of Federalist resentment because Pat- 
erson had not been chosen. "I see it denied in your 
paper that Mr. Marshall was nominated Chief Jus- 
tice of the U.S. The fact is so and he will without 
doubt have the concurrence of the Senate, tho' some 
hesitation was at first expressed from respect for the 
pretensions of Mr. Paterson." * The Republican 
politicians were utterly indifferent; and the masses 
of both parties neither knew nor cared about Mar- 
shall's elevation. 

The Republican press, of course, criticized the 
appointment, as it felt bound to attack any and 
every thing, good or bad, that the Federalists did. 
But its protests against Marshall were so mild 
that, in view of the recklessness of the period, this 
was a notable compliment. "The vacant Chief Jus- 
ticeship is to be conferred on John Marshall, one 
time General, afterwards ambassador to X. Y. and 
Z., and for a short time incumbent of the office of 
Secretary of State. . . . Who is to receive the salary 
of the Secretary of State, after Mr. Marshall's 
resignation, we cannot foretell, because the wis- 
dom of our wise men surpasseth understanding." 2 
Some days later the "Aurora," in a long article, 
denounced the Judiciary Law as a device for fur- 
nishing defeated Federalist politicians with offices, 3 

1 Bayard to Andrew Bayard, Jan. 26, 1801 ; Bayard Papers: Don- 
nan, 122. 

2 Aurora, Jan. 22, 1801. 

3 It is worthy of repetition that practically all the emphasis in their 
attacks on this act was laid by the Republicans on the point that offices 
were provided for Federalists whose characters were bitterly assailed. 
The question of the law's enlargement of National power was, com- 



556 JOHN MARSHALL 

and declared that the act would never be " carried 
into execution, . . . unless" the Federalists still 
meant to usurp the Presidency. But it goes on 
to say: — 

"We cannot permit ourselves to believe that John 
Marshall has been called to the bench to foster such 
a plot. . . . Still, how can we account for the strange 
mutations which have passed before us — Marshall 
for a few weeks Secretary of State ascends the bench 
of the Chief Justice." * The principal objection of 
the Republican newspapers to Marshall, however, 
was that he, " before he left the office [of Secretary of 
State], made provision for all the Federal printers to 
the extent of his power. . . . He employed the aris- 
tocratic presses alone to publish laws . . . for . . . one 
year." 2 

Only the dissipated and venomous Callender, from 
his cell in prison, displayed that virulent hatred of 
Marshall with which an increasing number of Jeffer- 
son's followers were now obsessed. " We are to have 
that precious acquisition John Marshall as Chief 
Justice. . . . The very sound of this man's name is 
an insult upon truth and justice"; and the dissolute 
scribbler then pours the contents of his ink-pot 
over Marshall's X. Y. Z. dispatches, bespatters his 
campaign for election to Congress, and continues 
thus: — 

"John Adams first appointed John Jay in the 
room of Ellsworth. A strong suspicion exists that 

paratively, but little mentioned; and the objections enlarged upon in 
recent years were not noticed by the fierce partisans of the time. 

1 Aurora, Feb. 3, 1801. 

9 Baltimore American; reprinted in the Aurora, April 2, 1801. 



CHIEF JUSTICE 557 

John did this with the previous certainty that John 
Jay would refuse the nomination. It was then in 
view to name John Marshall : first, because President 
Jefferson will not be able to turn him out of office, 
unless by impeachment; and in the second place that 
the faction [Federalist Party] who burnt the war 
office might, with better grace, attempt, forsooth, to 
set him up as a sort of president himself. Sus ad 
Minervaml" 1 

That the voice of this depraved man, so soon to be 
turned against his patron Jefferson, who had not yet 
cast him off, was the only one raised against Mar- 
shall's appointment to the highest judicial office in 
the Nation, is a striking tribute, when we consider 
the extreme partisanship and unrestrained abuse 
common to the times. 

Marshall himself, it appears, was none too eager 
to accept the position which Ellsworth had resigned 
and Jay refused; the Senate delayed the confirma- 
tion of his nomination; 2 and it was not until the 
last day of the month that his commission was 
executed. 

On January 31, 1801, the President directed Dex- 
ter "to execute the office of Secretary of State so 
far as to affix the seal of the United States to the 
inclosed commission to the present Secretary of 
State, John Marshall, of Virginia, to be Chief Justice 
of the United States, and to certify in your own 

1 Richmond Examiner, Feb. 6, 1801. 

2 Marshall's nomination was confirmed January 27, 1801, a week 
after the Senate received it. Compare with the Senate's quick action 
on the nomination of Marshall as Secretary of State, May 12, 1800, 
confirmed May 13. (Executive Journal of the Senate, iii.) 



558 JOHN MARSHALL 

name on the commission as executing the office of 
Secretary of State pro hac vice." 1 

It was almost a week before Marshall formally 
acknowledged and accepted the appointment. "I 
pray you to accept my grateful acknowledgments for 
the honor conferred on me in appointing me Chief 
Justice of the United States. This additional and 
flattering mark of your good opinion has made an 
impression on my mind which time will not efface. 
I shall enter immediately on the duties of the of- 
fice, and hope never to give you occasion to regret 
having made this appointment." 2 Marshall's ac- 
ceptance greatly relieved the President, who in- 
stantly acknowledged his letter : " I have this 
moment received your letter of this morning, 
and am happy in your acceptance of the office of 
Chief Justice." 3 

Who should be Secretary of State for the remain- 
ing fateful four weeks? Adams could think of no one 
but Marshall, who still held that office although he 
had been appointed, confirmed, and commissioned 
as Chief Justice. Therefore, wrote Adams, "the 
circumstances of the times . . . render it necessary 
that I should request and authorize you, as I do by 
this letter, to continue to discharge all the duties 
of Secretary of State until ulterior arrangements 
can be made." 4 

Thus Marshall was at the same time Chief Jus- 



1 Adams to Dexter, Jan. 31, 1801; Works: Adams, ix, 95-96. 

2 Marshall to Adams, Feb. 4, 1801; ib., 96. 
8 Adams to Marshall, Feb. 4, 1801; ib., 96. 
4 Same to same, Feb. 4, 1801; ib., 96-97. 



CHIEF JUSTICE 559 

tice of the Supreme Court and Secretary of State. 
Thus for the second time these two highest appoint- 
ive offices of the National Government were held 
simultaneously by the same man. 1 He drew but one 
salary, of course, during this period, that of Chief 
Justice, 2 the salary of Secretary of State remaining 
unpaid. 

The President rapidly filled the newly created 
places on the Federal Bench. Marshall, it appears, 
was influential in deciding these appointments. ''I 
wrote for you to Dexter, requesting him to show it 
to Marshall," 3 was Ames's reassuring message to 
an aspirant to the Federal Bench. With astounding 
magnanimity or blindness, Adams bestowed one of 
these judicial positions upon Wolcott, and Marshall 
"transmits . . . the commission . . . with peculiar 
pleasure. Permit me," he adds, "to express my 
sincere wish that it may be acceptable to you." His 
anxiety to make peace between Adams and Wolcott 
suggests that he induced the President to make this 
appointment. For, says Marshall, "I will allow 
myself the hope that this high and public evidence, 
given by the President, of his respect for your serv- 
ices and character, will efface every unpleasant sen- 
sation respecting the past, and smooth the way to a 
perfect reconciliation." 4 

1 Jay held both offices for six months. 

2 Auditor's Files, Treasury Department, no. 12, 166. This fact is 
worthy of mention only because Marshall's implacable enemies inti- 
mated that he drew both salaries. He could have done so, as a legal 
matter, and would have been entirely justified in doing so for services ac- 
tually rendered. But he refused to take the salary of Secretary of State. 

3 Ames to Smith, Feb. 16, 1801; Works: Ames, i, 292. 

4 Marshall to Wolcott, Feb. 24, 1801; Gibbs, ii, 495. 



560 JOHN MARSHALL 

Wolcott "cordially thanks" Marshall for "the 
obliging expressions of" his "friendship." He ac- 
cepts the office "with sentiments of gratitude and 
good will," and agrees to Marshall's wish for recon- 
ciliation with Adams, "not only without reluctance 
or reserve but with the highest satisfaction." * Thus 
did Marshall end one of the feuds which so embar- 
rassed the Administration of John Adams. 2 

Until nine o'clock 3 of the night before Jefferson's 
inauguration, Adams continued to nominate officers, 
including judges, and the Senate to confirm them. 
Marshall, as Secretary of State, signed and sealed the 
commissions. Although Adams was legally within 
his rights, the only moral excuse for his conduct 
was that, if it was delayed, Jefferson would make the 
appointments, control the National Judiciary, and 
through it carry out his States' Rights doctrine 
which the Federalists believed would dissolve the 

1 Wolcott to Marshall, March 2, 1801; Gibbs, ii, 496. 

2 The irresponsible and scurrilous Callender, hard-pressed for some 
pretext to assail Marshall, complained of his having procured the 
appointment of relatives to the Judiciary establishment. "Mr. John 
Marshall has taken particular care of his family," writes Jefferson's 
newspaper hack, in a characteristically partisan attack upon Adams's 
judicial appointments. (Scots Correspondent, in Richmond Examiner, 
March 13, 1801.) 

Joseph Hamilton Davies, a brother-in-law of Marshall's, was ap- 
pointed United States Attorney for the District of Kentucky; George 
Keith Taylor, another brother-in-law, was appointed United States 
Judge of the Fourth Circuit; and Marshall's brother, James M. Mar- 
shall, was appointed Assistant Judge of the Territory (District) of 
Columbia. These appointments were made, however, before the new 
Judiciary Act was passed. (Executive Journal of the Senate, i, 357, 
381, 387.) Callender appears to have been the only person to criti- 
cize these appointments. Even Jefferson did not complain of them 
or blame Marshall for them. The three appointees were competent 
men, well fitted for the positions; and their appointment, it seems, 
was commended by all. 

3 Jefferson to Rush, March 24, 1801; Works: Ford, ix, 231. 



CHIEF JUSTICE 561 

Union; if Adams acted, the most the Republicans 
could do would be to oust his appointees by repealing 
the law. 1 

The angry but victorious Republicans denounced 
Adams's appointees as "midnight judges." It was 
a catchy and clever phrase. It flew from tongue to 
tongue, and, as it traveled, it gathered force and 
volume. Soon a story grew up around the expres- 
sion. Levi Lincoln, the incoming Attorney-General, 
it was said, went, Jefferson's watch in his hand, 
to Marshall's room at midnight and found him 
signing and sealing commissions. Pointing to the 
timepiece, Lincoln told Marshall that, by the Presi- 
dent's watch, the 4th of March had come, and 
bade him instantly lay down his nefarious pen; 
covered with humiliation, Marshall rose from his 
desk and departed. 2 

1 The Republicans did so later. "This outrage on decency should 
not have its effect, except in life appointments [judges] which are 
irremovable." (Jefferson to Knox, March 27, 1801; Works: Ford, 
ix, 237.) 

2 Parton : Jefferson, 585-86. Parton relates this absurd tale on the 
authority of Jefferson's great-granddaughter. Yet this third-hand 
household gossip has been perpetuated by serious historians. The 
only contemporary reference is in the address of John Fowler of 
Kentucky to his constituents published in the Aurora of April 9, 
1801: "Tins disgraceful abuse was continued to the latest hour of 
the President's holding his office." The " shameful abuse " was thus 
set forth: "It [Judiciary Law of 1801] creates a host of judges, mar- 
shalls, attorneys, clerks, &c, &c, and is calculated, if it could endure, to 
unhinge the state governments and render the state courts contemp- 
tible, while it places the courts of law in the hands of creatures of 
those who have lost the confidence of the people by their miscon- 
duct. The insidiousness of its design has been equalled only by the 
shameless manner of its being carried into execution. The Constitu- 
tion disables any member of Congress from filling an office created 
during his period of service. The late President [Adams] removed 
persons from other branches of the Judiciary, to the offices created 



562 JOHN MARSHALL 

This tale is, probably, a myth. Jefferson never 
spared an enemy, and Marshall was his especial 
aversion. Yet in his letters denouncing these ap- 
pointments, while he savagely assails Adams, he does 
not mention Marshall. 1 Jefferson's "Anas," inspired 
by Marshall's "Life of Washington," omits no cir- 
cumstance, no rumor, no second, third, or fourth 
hand tale that could reflect upon an enemy. Yet he 
never once refers to the imaginary part played by 
Marshall in the "midnight judges" legend. 2 

Jefferson asked Marshall to administer to him the 
presidential oath of office on the following day. Con- 
sidering his curiously vindictive nature, it is un- 
thinkable that Jefferson would have done this had 
he sent his newly appointed Attorney-General, at 
the hour of midnight, to stop Marshall's consumma- 
tion of Adams's "indecent" 3 plot. 

Indeed, in the flush of victory and the multitude 
of practical and weighty matters that immediately 
claimed his entire attention, it is probable that Jef- 
ferson never imagined that Marshall would prove to 

by this law & then put members of Congress into the thus vacated 
offices. . . . This law can be considered in no other light than as 
providing pensions for the principals and adherents of a party [Fed- 
eralist]. The evil however will not I trust be durable and as it was 
founded in fraud the return of a wiser system will release the coun- 
try from the shame and imposition." (Fowler to his constituents in 
the Aurora, April 9, 1801.) 

1 Jefferson to Rush, March 24, 1801; Works: Ford, ix, 230-31; to 
Knox, March 27, 1801; ib., 237; to Mrs. Adams, June 13, 1804; ib., 
x, 85. 

8 Neither Randall nor Tucker, Jefferson's most complete and de- 
tailed biographers, both partisans of the great Republican, mentions 
the Lincoln-Marshall story, although, if it had even been current at 
the time they wrote, it is likely that they would have noticed it. 

3 Jefferson to Knox, supra. 



CHIEF JUSTICE 563 

be anything more than the learned but gentle Jay 
or the able but innocuous Ellsworth had been. Also, 
as yet, the Supreme Court was, comparatively, pow- 
erless, and the Republican President had little cause 
to fear from it that stern and effective resistance to 
his anti-national principles, which he was so soon to 
experience. Nor did the Federalists themselves sus- 
pect that the Virginia lawyer and politician would 
reveal on the Supreme Bench the determination, 
courage, and constructive genius which was pres- 
ently to endow that great tribunal with life and 
strength and give to it the place it deserved in our 
scheme of government. 

In the opinions of those who thought they knew 
him, both friend and foe, Marshall's character was 
well understood. All were agreed as to his extraor- 
dinary ability. No respectable person, even among 
his enemies, questioned his uprightness. The charm 
of his personality was admitted by everybody. But 
no one had, as yet, been impressed by the fact that 
commanding will and unyielding purpose were Mar- 
shall's chief characteristics. His agreeable qualities 
tended to conceal his masterfulness. Who could 
discern in this kindly person, with "lax, lounging 
manners," indolent, and fond of jokes, the heart 
that dared all things? And all overlooked the influ- 
ence of Marshall's youth, his determinative army 
life, his experience during the disintegrating years 
after Independence was achieved and before the 
Constitution was adopted, the effect of the French 
Revolution on his naturally orderly mind, and the 
part he had taken and the ineffaceable impressions 



564 JOHN MARSHALL 

necessarily made upon him by the tremendous 
events of the first three Administrations of the 
National Government. 

Thus it was that, unobtrusively and in modest 
guise, Marshall took that station which, as long as 
he lived, he was to make the chief of all among the 
high places in the Government of the American 
Nation. 



END OF VOLUME II 



APPENDIX 



APPENDIX 



I. LIST OF CASES 

Argued by Marshall before the Court of Appeals 
of Virginia 

Case Date Reported 
Joseph Cutchin v. William Wilkin- 
son Spring Term, 1797. . . .1 Call, 1 

William Fairclaim, lessee, v. Rich- 
ard and Elizabeth Guthrie Spring Term, 1797. ... 1 Call, ' 5 

Cabell et al. v. Hardwick Fall Term, 1798 1 Call, 301 

Hopkins v. Blane Fall Term, 1798 1 Call, 315 

Pryor v. Adams Fall Term, 1798 1 Call, 332 

Proudfit v. Murray Fall Term, 1798 1 Call, 343 

Harrison v. Harrison, et al Fall Term, 1798 1 Call, 364 

Shaw et al. v. Clements Fall Term, 1798 1 Call, 373 

Graves v. Webb Fall Term, 1798 1 Call, 385 

Jones v. Jones Fall Term, 1798 1 Call, 396 

Auditor of Public Accounts v. 

Graham Fall Term, 1798 1 Call, 411 

Beverley v. Fogg Spring Term, 1799 1 Call, 421 

Rowe et al. v. Smith Spring Term, 1799 1 Call, 423 

Ritchie & Co. v. Lyne Spring Term, 1799. ... 1 Call, 425 

Eckhols v. Graham, et al. Spring Term, 1799 1 Call, 428 

Noel v. Sale Spring Term, 1799. ... 1 Call, 431 

Lee v. Love & Co Spring Term, 1799 1 Call, 432 

Wilson v. Rucker Spring Term, 1799 1 Call, 435 

Garlington v. Clutton Spring Term, 1799 1 Call, 452 

Taliaferro v. Minor Spring Term, 1799 1 Call, 456 

Hacket v. Alcock Spring Term, 1799 1 Call, 463 

Rose v. Shore Spring Term, 1799 1 Call, 469 

Smith v. Dyer Spring Term, 1799. ... 1 Call, 488 

Macon v. Crump Spring Term, 1799 1 Call, 500 

Flemings v. Willis et ux Fall Term, 1799 2 Call, 5 

Eppes, Ex'r, v. DeMoville, Adm'r . Fall Term, 1799 2 Call, 19 

Cooke v. Simms Fall Term, 1799 2 Call, 33 

Lawrason, Adm'r v. Davenport 

et al Fall Term, 1799 2 Call, 79 

Price et al. v. Campbell Fall Term, 1799 2 Call, 92 

Eppes et al, Ex'rs, v. Randolph. . . Fall Term, 1799 2 Call, 103 

Taliaferro v. Minor Fall Term, 1799 2 Call, 156 



568 APPENDIX 

Case Date Reported 

Anderson v. Anderson. ......... .Fall Term, 1799. . . . . .2 Call, 163 

Crump et al. v Dudley et vx. . . . . .June, 1790 3 Call, 439 

Beall v. Edmondson .June, 1790. 3 Call, 446 

Johnsons v. Meriwether. .... July, 1790. ......... .3 Call, 454 

Barrett et al. v. Floyd et al .July, 1790 3 Call, 460 

Syme v. Johnston December, 1790 3 Call, 482 

Ross v. Pynes December, 1790. .... .3 Call, 490 

Rev. John Bracken v. The Visitors 

of William and Mary College. . .December, 1790. .... .3 Call, 495 

Hite et al. v. Fairfax et al. May, 1786 4 Call, 42 

Pickett v. Claiborne .October, 1787. . 4 Call, 99 

Beall v. Cockburn July, 1790. 4 Call, 162 

Hamilton v. Maze June, 1791 4 Call, 196 

Calvert v. Bowdoin June, 1791 4 Call, 217 

Tabb v. Gregory April, 1792 4 Call, 225 

Ross v. Gill et ux April, 1794 4 Call, 250 

White v. Jones October, 1792 4 Call, 253 

Marshall et al. v. Clark November, 1791 4 Call, 268 

Foushee v. Lea April, 1795 4 Call, 279 

Braxton et al. v. Winslow et al April, 1791 4 Call, 308 

Commonwealth v. Cunningham & 

Co October, 1793 .4 Call, 331 

Johnston v. Macon December, 1790 4 Call, 367 

Hooe v. Marquess October, 1798 4 Call, 416 

Chapman v. Chapman April, 1799 4 Call, 430 

Mayo v. Bentley October, 1800 4 Call, 528 

Turberville v. Self April, 1795 4 Call, 580 

Executors of William Hunter and 

the Executors of Herndon v. 

Alexander Spotswood Fall Term, 1792. ... .1 Wash. 145 

Stevens v. Taliaferro, Adm'r Spring Term, 1793 ... 1 Wash. 155 

Kennedy v. Baylor Spring Term, 1793. . . 1 Wash. 162 

Baird and Briggs v. Blaigove, 

Ex'r .Spring Term, 1793. . . 1 Wash. 170 

Bannister's Ex'rs v. Shore Spring Term, 1793. . . 1 Wash. 173 

Clayborn, Ex'r v. Hill Spring Term, 1793. . .1 Wash. 177 

Anderson v. Bernard Spring Term, 1793. . .1 Wash. 186 

Johnson v. Bourn Spring Term, 1793. . . 1 Wash. 187 

Eustace v. Gaskins, Ex'r Spring Term, 1793. . . 1 Wash. 188 

Wilson and McRae v. Keeling Fall Term, 1793 1 Wash. 195 

Payne, Ex'r, v. Dudley, Ex'r Fall Term, 1793 1 Wash. 196 

Hawkins v. Berkley Fall Term, 1793 1 Wash. 204 

Hooe & Harrison et al. v. Mason. .Fall Term, 1793 1 Wash. 207 

Thweat & Hinton v. Finch Fall Term, 1793 1 Wash. 217 

Brown's Adm'r v. Garland et al. . .Fall Term, 1793 1 Wash. 221 

Jones v. Williams & Tomlinson. . .Fall Term, 1793 1 Wash. 230 



APPENDIX 569 

Case Date Reported 

Coleman v. Dick & Pat Fall Term, 1793 1 Wash. 233 

Taylor's Adm'rs v. Peyton's 

Adm'rs Spring Term, 1794. . . 1 Wash. 252 

Smith and Moreton v. Wallace . . .Spring Term, 1794. . .1 Wash. 254 

Carr v. Gooch Spring Term, 1794. . . 1 Wash. 260 

Cole v. Clayborn Spring Term, 1794. . . 1 Wash. 262 

Shermer r.'Shermer Fall Term, 1794 1 Wash. 266 

Ward v. Webber etux Fall Term, 1794 1 Wash. 274 

Applebury et al. v. Anthony's Ex'rs. Fall Term, 1794 1 Wash. 287 

Smalhvood v. Mercer et al Fall Term, 1794 1 Wash. 290 

Minnis Ex'r, v. Philip Aylett Fall Term, 1794 1 Wash. 300 

Brown's Ex'rs v. Putney Fall Term, 1794 1 Wash. 302 

Lef twitch et ux. v. Stovall Fall Term, 1794 1 Wash. 303 

Lee, Ex'r, v. Cooke Fall Term, 1794 1 Wash. 306 

Burnley v. Lambert Fall Term, 1794 1 Wash. 308 

Cooke v. Beale's Ex'rs Fall Term, 1794 1 Wash. 313 

Dandridge v. Harris Fall Term, 1794 1 Wash. 326 

Nicolas v. Fletcher Fall Term, 1794 1 Wash. 330 

Watson & Hartshorne v. Alexan- 
der Fall Term, 1794 1 Wash. 340 

Wroe v. Washington et al Fall Term, 1794 1 Wash. 357 

Cosby, Ex'r, v. Hite Fall Term, 1794 1 Wash. 365 

Hewlett v. Chamberlayne Fall Term, 1794 1 Wash. 367 

Pendleton v. Vandevier Fall Term, 1794 1 Wash. 381 

Walden, Ex'r, v. Payne Fall Term, 1794 2 Wash. 1 

James Roy et al. v. Muscoe Gar- 

nett Fall Term, 1794 2 Wash. 9 

James Ferguson et al. v. Moore. . .Spring Term, 1795.. .2 Wash. 54 

Currie v. Donald Spring Term, 1795. . . 2 Wash. 58 

Shelton v. Barbour Spring Term, 1795. . . 2 Wash. 64 

Brock et al. v. Philips Spring Term, 1795. . . 2 Wash. 68 

Turner v. Moffett Spring Term, 1795. . .2 Wash. 70 

Turberville v. Self Spring Term, 1795. . . 2 Wash. 71 

Brydie v. Langham Spring Term, 1795. . . 2 Wash. 72 

Bernard v. Brewer Fall Term, 1795 2 Wash. 76 

Philip McRae v. Richard Woods . . Fall Term, 1795 2 Wash. 80 

Newell v. The Commonwealth . . . .Fall Term, 1795 2 Wash. 88 

White v. Atkinson Fall Term, 1795 2 Wash. 94 

Martin & William Picket v. James 

Dowdall Fall Term, 1795 2 Wash. 106 

Claiborne v. Parrish Fall Term, 1795 2 Wash. 146 

Brown et al. v. Adm'r, Thomas 

Brown, dec'd Fall Term, 1795 2 Wash. 151 

Harrison, Ex'r, v. Sampson Fall Term, 1795 2 Wash. 155 

Harvey et ux. v. Borden Fall Term, 1795 2 Wash. 156 

Lee v, Turberville Fall Term, 1795 2 Wash. 162 



570 APPENDIX 

Case Date Reported 

Jordan v. Neilson. ............. .Fall Term, 1795 . 2 Wash. 164 

Ruffin v. Pendleton & Courtney. . . Spring Term, 1796. . .2 Wash. 184 

Pearpoint v. Henry Spring Term, 1796. . . 2 Wash. 192 

Sarah Walker & Thomas Walker, 

Ex'rs, v. Thomas Walke[r] Spring Term, 1796. . .2 Wash. 195 

Davenport v. Mason Spring Term, 1796. . .2 Wash. 200 

Lewis Stephens v. Alexander 

White. Fall Term, 1796 2 Wash. 203 

Picket v. Morris Fall Term, 1796 2 Wash. 255 

Booth's Ex'rs v. Armstrong Fall Term, 1796. ... .2 Wash. 301 



n. GENERAL MARSHALL'S ANSWER TO AN ADDRESS 
OF THE CITIZENS OF RICHMOND, VIRGINIA 

I will not, Gentlemen, attempt to describe the emotions 
of joy which my return to my native country, and particularly 
to this city, has excited in my mind; nor can I paint the sen- 
timents of affection and gratitude towards you which my 
heart has ever felt, and which the kind and partial reception 
now given me by my fellow citizens cannot fail to increase. 
He only who has been . . . absent from a much loved country, 
and from friends greatly and deservedly esteemed — whose 
return is welcomed with expressions, which, di[rec]ted by 
friendship, surpass his merits or his ho[pes,] will judge of feel- 
ings to which I cannot do justice. 

The situation in which the late Envoys from [the] United 
States to the French Republic found themselves in Paris was, 
indeed, attended with the unpleasant circumstances which 
you have traced. — Removed far from the councils of their 
country, and receiving no intelligence concerning it, the 
scene before them could not fail to produce the most anxious 
and disquieting sensations. Neither the ambition, the power, 
nor the hostile temper of France, was concealed from them; nor 
could they be unacquainted with the earnest and unceasing 
solicitude felt by the government and people of the United 
States for peace. But midst these difficulties, they possessed, 
as guides, clear and explicit instructions, a conviction of the 
firmness and magnanimity, as well as of the justice and pacific 
temper of their government, and a strong reliance on that 
patriotism and love of liberty, which can never cease to glow 
in the American bosom. With these guides, however thorny 
the path of duty might be, they could not mistake it. It 
was their duty, unmindful of personal considerations, to pur- 
sue peace with unabating zeal, through all the difficulties with 
which the pursuit was embarrassed by a haughty and victori- 
ous government, holding in perfect contempt the rights of 
others, but to repel, with unhesitating decision, any proposi- 
tions, an acceptance of which would subvert the independence 
of the United States. — This they have endeavoured to do. I 
delight to believe that their endeavours have not dissatisfied 
their government or country, and it is most grateful to my 



572 APPENDIX 

mind to be assured that they receive the approbation of my 
fellow-citizens in Richmond, and its vicinity. 

I rejoice that I was not mistaken in the opinion I had formed 
of my countrymen. I rejoice to find, though they know how 
to estimate, and therefore seek to avoid the horrors and dan- 
gers of war, yet they know also how to value the blessings of 
liberty and national independence: — They know that peace 
would be purchased at too high a price by bending beneath a 
foreign yoke, and that peace so purchased could be but of 
short duration. The nation thus submitting would be soon 
involved in the quarrels of its master, and would be compelled 
to exhaust its blood and its treasure, not for its own liberty, 
its own independence, or its own rights, but for the aggran- 
dizement of its oppressor. The modern world unhappily exhi- 
bits but too plain a demonstration of this proposition. I pray 
heaven that America may never contribute its still further 
elucidation. 

Terrible to her neighbors on the continent of Europe, as all 
must admit France to be, I believe that the United States, if 
indeed united, if awake to the impending danger, if capable 
of employing their whole, their undivided force — are so situ- 
ated as to be able to preserve their independence. An im- 
mense ocean placed by a gracious Providence, which seems 
to watch over this rising empire, between us and the Euro- 
pean world, opposes of itself such an obstacle to an invading 
ambition, must so diminish the force which can be brought 
to bear upon us, that our resources, if duly exerted, must be 
adequate to our protection, and we shall remain free if we do 
not deserve to be slaves. 

You do me justice, gentlemen, when you suppose that con- 
solation must be derived from a comparison of the Adminis- 
tration of the American Government, with that which I have 
lately witnessed. To a citizen of the United States, so famil- 
iarly habituated to the actual possession of liberty, that he al- 
most considers it as the inseparable companion of man, a view 
of the despotism, which borrowing the garb and usurping the 
name of freedom, tyrannizes over so large and so fair a pro- 
portion of the earth, must teach the value which he ought to 
place on the solid safety and real security he enjoys at home. 
In support of these, all temporary difficulties, however great, 
ought to be encountered, and I agree with you that the loss of 
them would poison and embitter every other joy; and that dc 



APPENDIX 573 

prived of them, men who aspire to the exalted character of 
freemen, would turn with loathing and disgust from every 
other comfort of life. 

To me, gentlemen, the attachment you manifest to the gov- 
ernment of your choice affords the most sincere satisfaction. 
Having no interests separate from or opposed to those of the 
people, being themselves subject in common with others, to 
the laws they make, being soon to return to that mass from 
which they are selected for a time in order to conduct the af- 
fairs of the nation, it is by no means probable that those who 
administer the government of the United States can be actuated 
by other motives than the sincere desire of promoting the real 
prosperity of those, whose destiny involves their own, and 
in whose ruin they must participate. Desirable as it is at all 
times, a due confidence in our government, it is peculiarly so 
in a moment of peril like the present, in a moment when the 
want of that confidence must impair the means of self defence, 
must increase a danger already but too great, and furnish, or 
at least give the appearance of furnishing, to a foreign real 
enemy, those weapons, which have so often been so successfully 
used. 

Accept, gentlemen, my grateful acknowledgments for your 
kind expressions concerning myself, and do me the justice to 
believe, that your prosperity, and that of the city of Richmond 
and its vicinity, will ever be among the first wishes of my 
heart. 

(From Columbian Centinel, Saturday, Sept. 22, 1798.) 



in. FREEHOLDER'S QUESTIONS TO 
GENERAL MARSHALL 

VIRGINIA. Fredericksburg, Oct. 2 

POLITICAL QUESTIONS 

Addressed to General MARSHALL with his Answer thereto 

To J. MARSHALL, Esq. 

Richmond, Sept. 12. 
Dear Sir, 

Under a conviction that it will be of utility, should the an- 
swers to the following questions be such as I anticipate, I state 
them with a confidence of your readiness to give replies. They 
will, at all events, greatly satisfy my mind. 

1st. Do you not in heart, and sentiment, profess yourself an 
American — attached to the genuine principles of the Con- 
stitution, as sanctioned by the will of the people, for their gen- 
eral liberty, prosperity and happiness? 

2d. Do you conceive that the true interest and prosperity 
of America, is materially, or at all, dependent upon an alliance 
with any foreign nation? If you do, please state the causes, 
and a preference, if any exists, with the reasons for that pre- 
ference. 

3d. Are you in favor of an alliance, offensive and defensive, 
with Great Britain ? In fine, are you disposed to advocate any 
other, or a closer connection with that nation, than exists at 
the ratification of the treaty of 1794 ? If so, please state your 
reasons. 

4th. By what general principles, in your view, have the 
measures of our Administration and Government, in respect to 
France, been consistent with true policy or necessity? And 
could not the consequences have been avoided by a different 
line of conduct on our part? * 

5th. Are you an advocate for the Alien and Sedition Bills? 
Or, in the event of your election, will you use your influence 
to obtain a appeal of these laws? 

A Freeholder 

(Columbian Ceniinel, Boston, Mass., Saturday, October 20, 1798.) 



APPENDIX 575 

MARSHALL'S ANSWERS TO FREEHOLDER'S 
QUESTIONS 

Richmond, Sept. 20, '98. 
Dear Sir: — 

I have just received your letter of yesterday, [sic] and shall 
with equal candor and satisfaction, answer all your queries. 
Every citizen has a right to know the political sentiments of the 
man who is proposed as his representative; and mine have never 
been of a nature to shun examination. To those who think 
another gentleman more capable of serving the district than 
myself, it would be useless to explain my opinions because 
whatever my opinions may be, they will, and ought, to vote 
for that other; but I cannot help wishing that those who think 
differently, would know my real principles, and not attribute 
to me those I never possessed; and with which active calumny 
has been pleased to asperse me. 

Answ. 1. In heart and sentiment, as well as by birth and in- 
terest, I am an American, attached to the genuine principles 
of the constitution, as sanctioned by the will of the people, 
for their general liberty, prosperity and happiness. I consider 
that constitution as the rock of our political salvation, which 
has preserved us from misery, division and civil wars; and 
which will yet preserve us if we value it rightly and support 
it firmly. 

2. I do not think the interest and prosperity of America, at 
all dependent on the alliance with any foreign nation ; nor does 
the man exist who would regret more than myself the forma- 
tion of such an alliance. In truth, xA.merica has, in my opin- 
ion, no motive for forming such connection, and very power- 
ful motives for avoiding them. Europe is eternally engaged 
in wars in which we have no interest; and with which the fond- 
est policy forbids us to intermeddle. 

We ought to avoid any compact which may endanger our 
being involved in them. My sentiments on this subject are 
detailed at large in the beginning of the memorial addressed 
by the late envoys from the United States to the minister of 
foreign affairs of the French Republic, where the neutrality 
of the United States is justified, and the reasons for that neu- 
trality stated. 

3rd. I am not in favor of an alliance offensive and defensive 



576 APPENDIX 

with Great Britain nor for closer connection with that nation 
than already exists. No man in existence is more decidedly 
opposed to such an alliance, or more fully convinced of the 
evils that would result from it. I never have, in thought, word, 
or deed, given the smallest reason to suspect I wished it; nor 
do I believe any man acquainted with me does suspect it. 
Those who originate and countenance such an idea, may (if 
they know me) design to impose on others, but they do net im- 
pose on themselves. 

The whole of my politics respecting foreign nations are re- 
ducible to this single position. We ought to have commercial 
intercourse with all, but political ties with none. Let us buy 
cheap and sell as dear as possible. Let commerce go wherever 
individual, and consequently national interest, will carry it; 
but let us never connect ourselves politically with any nation 
whatever. 

I have not a right to say, nor can I say positively, what are 
the opinions of those who administer the Government of the 
United States; but I believe firmly that neither the President, 
nor any one of those with whom he advises, would consent 
to form a close and permanent political connection with any 
nation upon earth. 

Should France continue to wage an unprovoked war against 
us, while she is also at war with Britain, it would be madness 
and folly not to endeavor to make such temporary arrange- 
ments as would give us the aid of the British fleets to prevent 
our being invaded; but I would not, even to obtain so obvious 
a good, make such a sacrifice as I think we should make, by 
forming a permanent political connection with that, or any 
other nation on earth. 

4th. The measures of the administration and government 
of the United States with respect to France have in my opin- 
ion been uniformly directed by a sincere and unequivocal 
desire to observe, faithfully, the treaties existing between the 
two nations and to preserve the neutrality and independence 
of our country. — Had it been possible to maintain peace with 
Fiance without sacrificing those great objects, I am convinced 
that our government would have maintained it. 

Unfortunately it has been impossible. I do not believe that 
any different line of conduct on our part, unless we would 
have relinquished the rights of self government, and have be- 
come the colonies of France, could have preserved peace with 



APPENDIX 577 

that nation. — But be assured that the primary' object of 
France is and for a long time past has been, dominion over 
others. This is a truth only to be disbelieved by those who shut 
their eyes on the history and conduct of that nation. 

The grand instruments by which they effect this end, tc 
which all their measures tend, are immense armies on their 
part, and divisions, which a variety of circumstances have en- 
abled them to create, among those whom they wish to subdue. 
Whenever France has exhibited a disposition to be just toward 
the United States, an accurate attention to facts now in pos- 
session of the public, will prove that this disposition was mani- 
fest in the hope of involving us in her wars, as a dependent 
and subordinate nation. 

5th. I am not an advocate for the alien and sedition bills; 
had I been in Congress when they passed, I should, unless 
my judgment could have been changed, certainly have opposed 
them. Yet, I do not think them fraught with all those mis- 
chiefs which many gentlemen ascribe to them. I should have 
opposed them because I think them useless; and because they 
are calculated to create unnecessary discontents and jealous- 
ies at a time when our very existence, as a nation, may depend 
on our union — 

I believe that these laws, had they been opposed on these 
principles by a man, not suspected of intending to destroy the 
government, or being hostile to it, would never have been en- 
acted. With respect to their repeal, the effort will be made be- 
fore I can become a member of Congress. 

If it succeeds there will be an end of the business — if it 
fails, I shall on the question of renewing the effort, should I 
be chosen to represent the district, obey the voice of my con- 
stituents. My own private opinion is, that it will be unwise 
to renew it for this reason : the laws will expire of themselves, 
if I recollect rightly the time for which they are enacted, dur- 
ing the term of the ensuing Congress. I shall indisputably 
oppose their revival; and I believe that opposition will be more 
successful, if men's minds are not too much irritated by the 
struggle about a repeal of laws which will, at the time, be ex- 
piring of themselves. 

J. Marshall. 

(From Times and Virginia Advertiser, Alexandria, Va., Oct. 11, 1798.) 



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Correspondence between the Honorable John Adams, 

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Our Navy and the Barbary Corsairs, Boston. 1905. 

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Ambler, Charles Henry. Sectionalism in Virginia, from 
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American Historical and Literary Curiosities. See Smith, John 
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